NACDL

When I am describing Brady evidence, I like to tell the story about a phone call I received from a wonderfully professional prosecutor in San Antonio. I got a call from Assistant U.S. Attorney Charlie Strauss. He said, “Cynthia, I hate to tell you this.” And then he went on to tell me about some favorable evidence he had just learned. If the prosecutor “hates to tell you something,” then it is Brady evidence.

Most civil lawyers, even longtime practitioners, believe that criminal cases are tried after full disclosure of the evidence to both parties in the case. They assume that lawyers exchange witness lists, conduct depositions, and submit interrogatories and requests for admissions, and thereafter determine whether the case should be settled or tried.

However, based on the faulty assumption that every accused person will kill, threaten, and manipulate witnesses, most criminal discovery is left to the discretion of the prosecutor.¹ A recent search for criminal charges stemming from defe