Brady's Bunch of FLaws

/. IntroductionThe 1970s television program The Brady Bunch provided a lighthearted and optimistic portrayal of American family life. A divorced man with three brown-haired boys married a divorced woman with three blonde daughters. They melded together into a happy, well-adjusted crew committed to mad-cap adventures accompanied by syrupy background music. Although the family had its moments of tension, those incidents were resolved favorably in the window of a standard half-hour comedy. I loved watching The Brady Bunch during my childhood. I had a crush on the actress Florence Henderson, the charming mother of the brood. As someone with only one sibling, a brother, I envied the Brady boys. I had always wanted a sister, better yet, three. And while I am not the product of divorce, many of my friends are. The Brady Bunch supplied a pleasant, almost Utopian vision of life in divorce-ridden 1970s America, an image of family interactions far removed from the blurrier, bleaker experiences of my pals.It strikes me that the promise of The Brady Bunch was illusory. Divorce has wreaked havoc on this country. The problems that derive from divorce and remarriage are multifaceted; they seldom lend themselves to tidy resolution in thirty minutes, let alone a lifetime. The show provided a distraction - and a disservice. It sent an inaccurate message about the world to legions of children suffering the painful consequences of divorce in their own families.In some respects, The Brady Bunch television show resembles the federal constitutional doctrine that requires prosecutors to disclose exculpatory evidence to defendants in criminal cases under Brady v. Maryland.1 The United States Supreme Court's Brady decision in 1963 offered hope that prosecutors can straddle the fence between their two principal responsibilities: To serve simultaneously as zealous advocates and neutral "ministers of justice."2 By turning over all evidence that exculpates the accused, prosecutors advance the cause of justice; by retaining all other items of evidence, they safeguard and promote their advocacy role.3 Brady represented a marriage of two somewhat disparate images of the prosecutorial function.4 But in the ensuing half-century the ideals of Brady have not gained much traction in practice.5 Even worse, the doctrine as presently constituted may provide a disservice to the very concept of justice.Given the international theme of this symposium, it is worth noting that the United States fares poorly in comparison to many other countries' approaches to discovery.6 When the Supreme Court handed down Brady, it elevated the United States above all other nations as the first to mandate the disclosure of exculpatory evidence by prosecutors.7 Despite this head start, much of the western world has outpaced the United States in the depth and breadth of the discovery rights granted to criminal defendants.8 This Article examines this state of affairs and puts forth some potential solutions.II. The Duty to Disclose Exculpatory Evidence: Theory and PracticeThe United States Supreme Court has never recognized a general constitutional right to discovery in criminal cases.9 As a matter of federal constitutional law, prosecutors are not even compelled to furnish the defendant with the names of prosecution witnesses prior to trial, much less disclose all of the police investigative information.10 State and federal discovery rules normally fill the void by providing defendants with the statutory right to receive at least some of the evidence against them in advance of trial. Even so, discovery rules tend to offer minimal solace to defendants.11 The scope of discovery in criminal cases is generally (and bizarrely, given the stakes) narrower than that of civil cases.12There is one category of evidence to which criminal defendants are constitutionally entitled prior to trial: Evidence that exculpates them from criminal charges.13 The Supreme Court held in Brady v. …