ABSTRACT
While Brady has reversed many verdicts, it has nevertheless been emasculated. Brady cannot do what it was intended to do-ensure fairness in the courtroom-if it is relegated to an after-the-verdict, on-appeal, rearview appraisal of whether or not the undisclosed evidence would have been material to the outcome of the trial. As in the Gillispie case, this post-trial appraisal is subjective and debatable. As long as the courts refrain from exercising a strong response to Brady violations, some prosecutors will take the limited risk of nondisclosure. Our courts can and should give Brady more muscle.
