2 posts

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

By Hilary Oran

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, despite the transformation of discovery since then, prosecutors’ constitutional disclosure obligations remain unchanged. 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 for the digital age. Ultimately, this Note advocates for a new standard that requires 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.

Download Article

Clashing Standards in the Courtroom: Judicial Notice of Scientific Facts

By Gregory Segal

The doctrine of judicial notice, contained in Rule 201 of the Federal Rules of Evidence, serves as a powerful tool for judges to bring in adjudicative facts without introducing any witnesses. Given the broad language of Rule 201(b), federal courts have used this doctrine for a wide and expanding range of materials. When a fact is judicially noticed, its impact is tremendous: in civil cases, under Rule 201(f), a jury must treat any fact that has been judicially noticed as conclusive. Judicial notice can be applied to scientific facts, but little attention has been paid to how judicial notice operates vis-à-vis the high bar set for the admission of expert scientific testimony under Daubert.

This Note explores this possibility. It begins by explaining the mechanics of judicial notice and the Daubert standard, and looks at how judicial notice has been applied to certain scientific facts. The Note identifies potential problems with current approaches: misapplication of Rule 201 with scientific facts and the possibility of evidence getting in via the judicial notice standard but not under Daubert. This Note argues that transparency is the key to avoiding these problems, such as judges providing more detailed explanations when taking judicial notice, applying Daubert in their judicial notice analysis, and more clearly citing precedent in taking judicial notice.

Download Article