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Does Brady Have Byte? Adapting Constitutional Disclosure for the Digital Age

Under Brady v. Maryland and its progeny, prosecutors have a constitutional obligation to disclose any material evidence that may be favorable to the defendant. Despite a prosecutor’s best efforts to comply, there are inherent difficulties associated with identifying such documents. For instance, discerning what is “material” requires anticipating, before trial, how all the evidence will come together during trial. Further, finding this evidence may resemble the proverbial search for a “needle in a haystack” when the amount of evidence becomes copious. This search becomes even more daunting in an age of voluminous electronic discovery that spans from digital files to social media to e-mails, potentially amounting to over a million pages of documents. This category of discovery was foreign to the judicial system at the time of Brady’s 1963 decision. However, although the context under which Brady doctrine evolved is no longer a familiar landscape, a prosecutor’s constitutional disclosure obligation remains unaffected. Accordingly, there is currently no uniform approach to assess potential Brady violations premised on high volume electronic discovery. This Note will explore the current practices for adapting Brady to account for the nuances of the digital age. Ultimately, this Note advocates for a new standard requiring prosecutors to adhere to recognized, minimum requirements when divulging a case file, but provides for circumstances in which a defendant’s limited resources require the prosecution to surpass this benchmark in order to fulfill its constitutional obligation.