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The integrity of the criminal justice system relies on the guarantees made to the actors operating within it. Critical to the accused is the guarantee of fair process. For the accused, fair process includes not only the right to put on a defense, but to put on a complete defense. The U.S. Supreme Court recognized the importance of this guarantee over 50 years ago, in Brady v. Maryland, when it declared that failure to disclose favorable information violates the constitution when that information is material.This guarantee, however, is frequently unmet.In courtrooms across the nation, accused persons are convicted without ever having access to, let alone an opportunity to present, information that is favorable to their defense.

The high-profile cases of Senator Theodore “Ted” Stevens and Michael Morton put a spotlight on this unfulfilled promise. The prosecutors in these cases possessed information favorable to the defense but failed to disclose it. Convinced of the defendants’ guilt, they worked to build cases against them while ignoring information which tended to undercut their own view of the defendants’ guilt. Both Senator Stevens and Michael Morton prevailed in clearing their own names, but countless others deprived of favorable information remain incarcerated or stained with a criminal record. Despite the reform that Morton’s ordeal spawned in Texas, the federal system in which Senator Stevens was prosecuted remains the same and disclosure violations continue in state and federal cases nationwide.

The frequency with which these violations occur and the role they play in wrongful convictions prompted the National Association of Criminal Defense Lawyers (NACDL) and the VERITAS Initiative of Santa Clara University School of Law (VERITAS Initiative) to come together to look at the problem from a different perspective. Many have heard about the problem of prosecutors engaging in misconduct by failing to disclose favorable information.The focus of such scholarship is typically on the individual prosecutor’s behavior or the culture and policies of a particular prosecution office. Rather than look at the prosecution, with this study, NACDL and the VERITAS Initiative ask: What role does judicial review play in the disclosure of favorable information to the accused?

To answer that question, the authors took a random sample of Brady claims litigated in federal courts over a five-year period and assessed the quality and consistency of judicial review of the claims.The sample included 620 decisions in which a court ruled on the merits of a Brady claim. Guided by an extensive methodology, the review of these decisions included evaluating the materiality analysis employed by the courts and a variety of other factors and characteristics.The firsthand review of each decision in the sample and statistical analysis of the data as a whole reveals a variety of problems and answers the question motivating the study — through judicial review, the judiciary plays a significant role in impeding fair disclosure of favorable information.

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