Prosecutors have a tremendous amount of power. I should know, I oppose them daily. Not to mention that for a very short period of time, I was one. In fact, upon hearing that I was a prosecutor once, the famed cowboy lawyer from Wyoming, Gerry Spence, said to me, “I forgive you, my son.” But I digress. Prosecutors have tremendous power. Among the most significant of their powers is the obligation not turn over what we call Brady evidence.
Brady evidence is evidence that tends to help the accused and believe it or not, prosecutors decide for themselves what is and what is not Brady evidence. Sure sometimes we catch them in their failure to disclose it or the fact that they possess it but more often than not, we are left to trust that they have turned it over. Some prosecutors are very good at disclosure. Some, awful. This episode breaks down Brady evidence and how we can improve the legal system to ensure that accused citizens and their lawyers get Brady evidence and don’t just rely on prosecutors to turn it over.