Brady’s Brainteaser: The Accidental Prosecutor and Cognitive Bias

In his Article, Litigating Brady v. Maryland: Games Prosecutors Play, Professor Gershman rightly argues that it is bad for prosecutors to play Hide and Seek or Blind Man\u27s Bluff with Brady material. It is bad to treat one\u27s constitutional obligation to disclose exculpatory evidence as a gamble or a scavenger hunt. It is bad for prosecutors to play all of these games. Rather than disagree with Professor Gershman, I\u27d like to flesh out a point about a prosecutor\u27s disclosure that I think, unfortunately, could get lost if we place too much emphasis on the comparison to games-in particular, if we take too literally the post-colon portion of this panel\u27s title: Games Prosecutors Play to Avoid Compliance. To say that prosecutors play games to avoid compliance with Brady is to suggest that Brady itself is perfectly sound doctrine and that defendants would be in a fine position to have a fair shot in the adversarial system, just so long as those wily prosecutors would set aside their evil games, play fair, and comply with Brady. The story is more complicated, as Professor Gershman acknowledges in his piece, because the Brady doctrine itself invites many of the prosecutorial tactics that can be depicted as unfair gamesmanship. Without disagreeing with any of Professor Gershman\u27s observations about purposeful, knowing, or ostrich-like prosecutorial failures to disclose evidence that qualifies as Brady material, I will talk about a problem that others have mentioned today but have not explored: how virtuous prosecutors-acting in good faith and trying to comply with Brady-might still fail to turn over exculpatory evidence. To continue the analogy of games, what I am exploring is not a game that prosecutors consciously play to avoid Brady, but instead a brainteaser that Brady itself forces prosecutors to engage in