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A Guide to Effective Brady Motions
Too often, criminal defense attorneys file boilerplate 'Brady motions' seeking in essence 'any and all information which may be favorable to the defendant and material to the issue of guilt or punishment.' Brady v. Maryland, 373 U.S. 83 (1963). Prosecutors respond in cookie cutter form that they are 'aware of their Brady obligation and will disclose such evidence when and as appropriate.' This might be on the eve of trial, mid-trial, or even post-trial. If truly pressed at the motion stage with a detailed Brady request, some prosecutors and courts have relied on Strickler v. Greene, 527 U.S. 263, 280 (1999), as grounds for denying the defense request.
The Strickler Rear-View Mirror Standard
Under Strickler, evidence is considered Brady material, subject to disclosure, only if there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different. This standard is widely accepted in every circuit and even cited by some defense attorneys making motions for Brady material. Yet, use of this standard in practice is virtually impossible, since it requires the government, an advocate in the case, to look narrowly into its crystal ball and unilaterally determine whether a piece of evidence might alter the outcome of the trial. As a result, the protections that Brady was intended to ensure are lost.
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