innocent have rights too: expanding brady v. maryland to

THE INNOCENT HAVE RIGHTS TOO:EXPANDING BRADY V. MARYLAND TO

PROVIDE THE CRIMINALLYINNOCENT WITH A CAUSE OF

ACTION AGAINST POLICE OFFICERSWHO WITHHOLD EXCULPATORY

EVIDENCE

SUNIL BHAvEt

I. INTRODUCTION

Imagine being charged with a crime you did not commit. The ac-cusations embarrass you, your spouse, your parents, and your chil-dren. You are innocent, so you hire a lawyer-a pricey lawyer-todefend you. You have spent a lot of money to defend your good nameand your character and, in the end, you are acquitted.

Now suppose that soon after your acquittal you discover that thepolice withheld exculpatory evidence from the prosecutor in an effortto secure a false conviction.1 You feel taken advantage of and vio-

t J.D., St. Louis University, 2004. As an Illinois Assistant Attorney General, theauthor represented the defendants in Bielanski v. County of Kane, 550 F.3d 632 (7thCir. 2008). See infra notes 185-95 and accompanying text. The analysis in this Article,however, should in no way be construed to reflect the views of the Office of the IllinoisAttorney General.

1. Such actions, if taken by a prosecutor in the context of a guilty verdict would, ofcourse, be in derogation of procedural due process under the Fifth and FourteenthAmendments to the United States Constitution. See Brady v. Maryland, 373 U.S. 83, 87(1963). The United States Supreme Court, however, has yet to extend the Brady hold-ing to claims that police officers, as opposed to prosecutors, withheld material, exculpa-tory evidence from the defense. Michael Avery, Paying for Silence: The Liability ofPolice Officers Under Section 1983 for Suppressing Exculpatory Evidence, 13 TEMP. POL.& Cry. RTS. L. REv. 1, 1-2 (2003). But see Youngblood v. West Virginia, 547 U.S. 867,870 (2006) (noting lower federal courts permit convicted plaintiffs to bring civil rightsBrady claim against police). "[A] Brady suppression occurs when the government fails toturn over even evidence that is 'known only to police investigators and not to the prose-cutor.'" Youngblood, 547 U.S. at 870; see also Carvajal v. Dominguez, 542 F.3d 561, 566(7th Cir. 2008) (stating Brady "duty extends to the police"); Brady v. Dill, 187 F.3d 104,114 (1st Cir. 1999); Hart v. O'Brien, 127 F.3d 424, 446-47 (5th Cir. 1997); McMillian v.Johnson, 88 F.3d 1554, 1569 (11th Cir. 1996); Walker v. City of New York, 974 F.2d 293,299 (2d Cir. 1992); Walker v. Lockhart, 763 F.2d 942, 958 (8th Cir. 1985) ("Police aretreated as an arm of the prosecution for Brady purposes."). But see Moldowan v. City ofWarren, 578 F.3d 351, 401-07 (6th Cir. 2009) (Kethledge, J., concurring in the judgmentin part, dissenting in part) (cautioning courts not to extend a Brady obligation to policeofficers because prosecutors already have an obligation to disclose exculpatory evidencein possession of police and the extension of Brady to police would "significantly] in-crease ... lawsuits against police officers").

CREIGHTON LAW REVIEW

lated. Not only have you spent a lot of money to defend yourself, butyou also have endured the social stigma attached to being chargedwith a crime. However, can you sue the police who "wronged" you?And to a broader inquiry, did the police "wrong" you?

This Article examines the issue of suing police officers civilly formoney damages, pursuant to 42 U.S.C. § 1983, under Brady v. Mary-land,2 where the plaintiff has not been convicted of criminal charges. 3

A civil rights suit brought pursuant to § 1983 can be an effective wayfor plaintiffs to redress the constitutional wrongs that police officershave committed against them.4 Through the possibility of compensa-tory and punitive damages, § 1983 suits against police officers couldserve as an effective deterrent against the withholding of exculpatoryevidence to obtain convictions. 5 But can a criminally innocent plain-tiff sue civilly under Brady?

Pursuant to Brady, the Fourteenth Amendment's Due ProcessClause requires the disclosure of exculpatory evidence to a criminaldefendant if the evidence is "material" to the defendant's guilt or inno-cence. 6 At this time, five federal circuits have either explicitly re-jected civil Brady claims where the plaintiff was not convicted ofcriminal charges or at least suggested that such claims would not be

2. 373 U.S. 83 (1963).3. This Article does not discuss Brady liability as it relates to prosecutors.

Whether a prosecutor who withholds material, exculpatory evidence from the defense ina criminal case can be sued under any legal theory is an open question. See, e.g., Rich-ard Rosen, Disciplinary Sanctions Against Prosecutors for Brady Violations: A PaperTiger, 65 N.C. L. REV. 693, 696-97 (1987). As far as liability under 42 U.S.C. § 1983 isconcerned, the Supreme Court has held that a prosecutor is immune from a suit allegingsuppression of exculpatory evidence. Imbler v. Pachtman, 424 U.S. 409, 427 (1976); seeMichael Avery, Obstacles to Litigating Civil Claims for Wrongful Conviction: An Over-view, 18 B.U. PuB. INT. L.J. 439, 448 (2009) ("[Tlhe police are the only potential parties... who can be held liable when the defendant is not apprised of evidence tending toestablish innocence[ I because prosecutors are protected by the doctrine of absolute im-munity."); see also Long v. Satz, 181 F.3d 1275, 1279 (11th Cir. 1999); Reid v. NewHampshire, 56 F.3d 332, 336 (1st Cir. 1995); Carter v. Burch, 34 F.3d 257, 263 (4th Cir.1994); Casey-El v. Hazel, 863 F.2d 29, 30 (8th Cir. 1988); Myers v. Morris, 810 F.2d1437, 1446-47 (8th Cir. 1987); Jones v. Shankland, 800 F.2d 77, 80 (6th Cir. 1986); Hil-lard v. Williams, 540 F.2d 220, 221-22 (6th Cir. 1976).

4. The very purpose of § 1983 suits supports this conclusion. As the SupremeCourt has stated, "[T]he basic purpose of a section 1983 damages award should be tocompensate persons for injuries caused by the deprivation of constitutional rights." Ca-rey v. Piphus, 435 U.S. 247, 254 (1978). But § 1983 creates no substantive rights.Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). Instead, § 1983 may be utilized toredress rights that are established elsewhere. Moldowan v. City of Warren, 578 F.3d351, 376 (6th Cir. 2009); Sykes, 13 F.3d at 519. For an in-depth analysis of§ 1983 law-suits as they relate to police misconduct, see Wayne C. Beyer, Police Misconduct: Princi-ples Governing Money Damages and Other Relief Under 42 U.S.C. §1983, 32 TORT &INS. L.J. 154 (1996).

5. Smith v. Wade, 461 U.S. 30, 35-36 (1983) (recognizing that punitive damagesavailable for § 1983 claims).

6. Brady, 373 U.S. at 87.

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THE INNOCENT HAVE RIGHTS TOO

viable. 7 This Article argues that courts must recognize civil Bradyclaims where the plaintiff has not been convicted of the underlyingcriminal charges. Indeed, the United States Supreme Court has neverlimited a cause of action under Brady to only those plaintiffs who havebeen convicted of crimes. Truth be told, the Supreme Court's Bradyanalysis always has been conducted in the context of criminal or post-conviction relief proceedings where the remedy sought for a Brady vio-lation is a new trial, not money damages. Accordingly, traditionalBrady analysis (in the criminal law setting) is misplaced.

Part II of this Article discusses the formulation of the Brady doc-trine and the evolution of the prejudicial-error prong within that test.It contends that, regardless of whether withheld exculpatory evidenceis "material," or in other words, prejudicial to the victim of a Bradyviolation, precedent holds that the Due Process Clause of the Four-teenth Amendment is violated whenever the police withhold Brady ev-idence. Courts must recognize that prejudice under Brady is not ofconstitutional magnitude; rather, the prejudicial-error analysis underBrady always has been concerned with whether the Brady violationwarrants a new criminal trial. However, because a plaintiff alleging acivil Brady claim does not seek a new trial, the absence of a criminalconviction should not bar recovery under § 1983.

Part III analyzes the federal cases that hold that a civil Bradyclaim cannot be brought pursuant to § 1983 without a finding ofprejudice. These cases generally hold that no prejudice ensues fromthe nondisclosure of exculpatory evidence because the plaintiff wasnever convicted and, hence, did not receive an unfair trial. Thesecases hold that, at a minimum, Brady-prejudice must involve a convic-tion based on the withheld evidence.8

7. Morgan v. Gertz, 166 F.3d 1307, 1310 (10th Cir. 1999) (finding no Brady liabil-ity because "a defendant who is acquitted cannot be said to have been deprived of theright to a fair trial"); Flores v. Satz, 137 F.3d 1275, 1278 (11th Cir. 1998) ("Plaintiff,however, was never convicted and, therefore, did not suffer the effects of an unfair trial.As such, the facts of this case do not implicate the protections of Brady."); Taylor v.Waters, 81 F.3d 429, 435-36 (4th Cir. 1996) (holding there is no settled authority estab-lishing the illegality of an officer's conduct in withholding exculpatory evidence fromunconvicted plaintiffs); McCune v. City of Grand Rapids, 842 F.2d 903, 907 (6th Cir.1988) (holding no Brady violation and stating, "Because the underlying criminal pro-ceeding terminated in appellant's favor, he has not been injured by the act of wrongfulsuppression of exculpatory evidence"); see also Rogala v. District of Columbia, 161 F.3d44, 55-56 (D.C. Cir. 1998) (adopting decision of district court that police officers did notviolate due process by failing to preserve witness because plaintiffs were neverprosecuted).

8. A few cases in the Northern District of Illinois have found Brady liability wherea plaintiff has not been convicted. See Mosely v. City of Chicago, No. 6 C 6314, 2007 WL2608517 (N.D. Ill. Sept. 4, 2007); Gomez v. Riccio, No. 02 C 5911, 2005 WL 2978955(N.D. Ill. Nov. 1, 2005); Craig v. Chi. Police Officers, No. 05 C 0172, 2005 WL 1564982(N.D. Ill. June 9, 2005); Kidd v. City of Chicago, No. 02 C 9534, 2003 WL 22243938

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Nevertheless, the federal courts' analyses fail to examine the truedamages caused by the withholding of exculpatory evidence. The fed-eral courts' premise, that withholding exculpatory evidence violatesdue process only if the evidence is "prejudicial," or in other words, ifdisclosure of the evidence would warrant a new criminal trial, ignoresthe fact that the remedy sought by a civil Brady claim is not a newtrial.9 The damage suffered by a civil Brady plaintiff is not a criminalconviction. It is, instead, the monetary loss associated with facingcharges without the benefit of the withheld exculpatory evidence.Thus, in this sense, due process is violated by the mere withholding ofexculpatory evidence. 10

Brady introduced the notion of "prejudicial error" in the criminallaw setting, not in the civil setting." In the criminal context, or post-conviction relief context, it makes sense to apply prejudicial error toBrady claims because the remedy sought in those cases is a new trial.Indeed, a new trial should be granted only if the claimed error wasprejudicial. If the error was not prejudicial, then the absence of theerror would have had no effect on the outcome of the trial, and a newtrial would not be warranted. 12

Under § 1983, however, the usual remedy sought is not a newtrial but, rather, money damages. 13 Thus, it makes little sense tolimit a § 1983 suit, premised on a Brady claim, to instances where thewithheld evidence would have warranted a new criminal trial. Whilethe extent to which a new trial would have been warranted may berelevant to the amount of damages suffered by the plaintiff, it is irrel-evant on the issue of whether the police violated the accused's due

(N.D. Ill. Sept. 26, 2003); Carroccia v. Anderson, 249 F. Supp. 2d 1016 (N.D. Ill. 2003).But see Gregory v. Oliver, 226 F. Supp. 2d 943 (N.D. Ill. 2002) (holding no Brady claimwhere plaintiff acquitted at criminal trial). Standing as district court opinions, thesecases have little precedential value.

9. Under Brady analysis in the criminal setting, materiality is defined as whether"'the favorable evidence could reasonably be taken to put the whole case in such a differ-ent light as to undermine confidence in the verdict.'" Banks v. Dretke, 540 U.S. 668,698 (2004) (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995)).

10. The cases pre-dating Brady that support this proposition include Mooney v.Holohan, 294 U.S. 103 (1935), Pyle v. Kansas, 317 U.S. 213 (1942), and Alcorta v. Texas,355 U.S. 28 (1957).

11. Rosen, supra, note 3, at 705 ("[T]he concept of materiality in a Brady case isequivalent to the concepts of prejudice or harmless error courts employ in other areas ofcriminal law.").

12. Id. at 705-07.13. Of course, § 1983 "creates no substantive rights" on its own. City of Oklahoma

City v. Tuttle, 471 U.S. 808, 816 (1985) (citing Baker v. McCollan, 443 U.S. 137, 140,144 & n.3 (1979)). But where a constitutional right is violated by a state actor, § 1983"provides remedies for deprivations of [such a] right[ I." Tuttle, 471 U.S. at 816 (citingBaker, 443 U.S. at 140, 144 & n.3 (1979)).

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process rights. 14 Focusing attention on the remedy sought by thecause of action helps show when prejudicial error is or is not relevantin Brady claims. In civil Brady cases, prejudicial error is irrelevant.

Part IV addresses civil Brady claims in the context of a living con-stitution. In today's society, the prevalence of police misconduct in theform of withholding exculpatory evidence to secure convictions re-quires a civil remedy, which will deter such misconduct. Thus, undera living constitutional theory, the Fourteenth Amendment should beinterpreted to mean that one is denied due process if the police havewithheld Brady evidence from one's criminal trial, irrespective ofwhether a criminal conviction results. 15 Finally Part V offers a con-clusion. In the end, allowing plaintiffs-especially criminally inno-cent ones-who have been denied Brady evidence the right to sue thepolice for money damages is essential to protecting the FourteenthAmendment and guaranteeing that future police misconduct will notcontinue.

II. EVOLUTION OF THE BRADY DOCTRINE

A. PRE-BRADY PRECEDENT

Although Brady v. Maryland16 is generally considered to be thecornerstone case with respect to the government's obligation to turnover exculpatory evidence, the United States Supreme Court laid thegroundwork nearly thirty years earlier in Mooney v. Holohan'17 forwhat eventually came to be known as the Brady doctrine. There,Thomas Mooney claimed that his conviction for murder-and subse-quent sentence of death-was based on the government's knowing useof perjured testimony and that authorities deliberately suppressed ex-culpatory evidence. I8 Mooney argued that the deliberate withholdingof exculpatory evidence during his criminal trial resulted in a denial ofdue process of law. 19 The Court analyzed the case under the legalframework of the Due Process Clause of the Fourteenth Amend-

14. In a non-Brady context, the plaintiff in Haupt v. T.D. Dillard, 17 F.3d 285, 287-88 (9th Cir. 1994), claimed a due process violation for denial of a fair criminal trial,pursuant to § 1983, notwithstanding his acquittal. The Ninth Circuit held that "[tihefact that [the plaintiffi ultimately was acquitted speaks only to the amount of damageshe suffered; it is irrelevant to whether he has a cause of action." Id. at 287.

15. For a comparison between the development of common law and constitutionalinterpretation under a living constitutional theory, see DAVID A. STRAUSS, THE LIVINGCONSTITUTION 33-49 (2010). Professor Strauss maintains that virtually all SupremeCourt precedent applies the common law and "the text of the Constitution will play, atmost, a ceremonial role." Id. at 33.

16. 373 U.S. 83 (1963).17. 294 U.S. 103 (1935).18. Mooney v. Holohan, 294 U.S. 103, 110 (1935).19. Mooney, 294 U.S. at 110.

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ment.20 The Court held that a criminal defendant is denied due pro-cess when a conviction is obtained through suppression of evidenceand use of perjured testimony.2 1 Interestingly, the Court made no ref-erence to the necessity of prejudice to sustain a claim that due processhad been violated.

In Pyle v. Kansas,2 2 the Court again took up the issue of the effectof a conviction obtained through perjured testimony and suppressionof exculpatory evidence. Harry Pyle was a Kansas prisoner who ap-pealed a state court order denying his petition for writ of habeascorpus. 2 3 While his application to the Court was crudely written, itwas clear that he claimed that his conviction was obtained by "testi-mony known to be perjured, and by the suppression of testimonyfavorable to him."24 Citing Mooney, the Court held that Pyle's allega-tion "sufficiently charge[d] a deprivation of rights guaranteed by theFederal Constitution."25 Again, the Court held that a criminal defen-dant is denied due process when exculpatory evidence is suppressed.26

However, the Court did not engage in any analysis regarding the prej-udicial impact of the suppression. 2 7 The Court made no mention ofprejudice as an element of a due process claim based on the withhold-ing of exculpatory evidence. 28

In 1957, the Warren Court heard the case of Alcorta v. Texas,29 inwhich it addressed the issue of whether the suppression of exculpatoryevidence from a criminal defendant violated due process. 30 In Alcorta,a jury convicted Alvaro Alcorta of murder for killing his wife.3 1 Hisdefense at trial was that he caught his wife and a stranger kissing in acar, and upon seeing this, he snapped and killed her under suddenpassion.3 2 Under then-present Texas law, his crime, if committedunder sudden passion, would have resulted in a maximum sentence offive years imprisonment, 3 3 as opposed to the death sentence he re-ceived for murder. 34 At his habeas corpus hearing, the prosecutor in

20. Id. at 113.21. Id. at 112-13. The Mooney Court did not provide Thomas Mooney with relief,

however, because it ultimately held that he failed to exhaust state remedies. Id. at 115.22. 317 U.S. 213 (1942).23. Pyle v. Kansas, 317 U.S. 213, 213 (1942).24. Pyle, 317 U.S. at 214.25. Id. at 216.26. Id.27. See id.28. See id.29. 355 U.S. 28 (1957).30. Alcorta v. Texas, 355 U.S. 28, 31 (1957).31. Alcorta, 355 U.S. at 28.32. Id. at 28-29.33. Id. at 29.34. Id.

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his murder trial admitted that the man having an affair with Alcorta'swife confessed to the affair and also confessed to having sex with Al-corta's wife several times prior to her murder. 35 The prosecutor alsoadmitted that he did not disclose the confession to Alcorta at any timeprior to the murder conviction. 36 Relying on both Mooney and Pyle,the Court's per curium opinion held that Alcorta had been denied dueprocess of law. 37 Again, the Court found that due process was violatedby the mere suppression of exculpatory evidence. 38

Interestingly, it was in Alcorta that the Court for the first timetook an unprecedented step by discussing the prejudicial impact thatthe suppression of evidence had on Alcorta's trial.39 It is most likelythe case, however, that the Court discussed prejudice-which appearsas dicta-to emphasize the severity of the constitutional violation. Af-ter all, the suppressed evidence was exactly in line with Alcorta's de-fense during his criminal trial.

The Court retreated from its prejudicial impact discussion twoyears later, however, in Napue v. Illinois,40 and reverted back to itsopinion that suppression of exculpatory evidence by itself violates dueprocess. In Napue, the prosecutor cut a deal with its chief witnessagainst the defendant. 4 1 When the prosecutor asked the witness atHenry Napue's trial if he had entered into any deals in exchange forhis testimony, the witness denied that a deal had been made.4 2 Therewas testimony at trial, however, that an unnamed public defender hadagreed to help the witness if he testified.4 3 The Court framed thequestion presented as follows: "[W]hether on these facts the failure ofthe prosecutor to correct the testimony of the witness which he knewto be false denied [the defendant] due process of law in violation of theFourteenth Amendment to the Constitution of the United States."44

The Court first reaffirmed its holding in Mooney and Pyle, statingthat "a conviction obtained through use of false evidence, known to besuch by representatives of the State, must fall under the FourteenthAmendment."45 Not only did the prosecutor use false evidence, but healso suppressed evidence of the deal with the witness from the defen-

35. Id. at 30-31.36. Id. at 31.37. Id.38. See id. at 31-32.39. Id.40. 360 U.S. 264 (1959).41. Napue v. Illinois, 360 U.S. 264, 265 (1959).42. Napue, 360 U.S. at 265.43. Id.44. Id.45. Id. at 269.

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dant.46 The Court then found that the suppression of the evidence(the deal) violated due process of law, even though the evidence maynot have been prejudicial. 47 The Court determined the prosecutor'ssuppression of evidence alone was sufficient to turn the trial into a"tainted" one. 48

What can be gleaned from pre-Brady precedent such as Mooney,Pyle, Alcorta, and Napue is a settled rule: the mere withholding of ex-culpatory evidence during a criminal prosecution violates due pro-cess. 49 Thus, under this precedent, a plaintiff who has hadexculpatory evidence withheld from his or her criminal case would beable to state a cause of action against the police under Brady. As thenext section demonstrates, that fundamental premise remains unal-tered, notwithstanding the introduction of the prejudicial-error testapplicable in the criminal law setting. Thus, it is crucial at this junc-ture to bear in mind the dichotomy between a Brady claim in the crim-inal setting versus a Brady claim in the civil context. As will bediscussed later,50 it is only in the former set of cases that the prejudi-cial-error test has any value.

B. BRADY AND ITS PROGENY

In 1963, the United States Supreme Court issued its seminalopinion, Brady v. Maryland,51 analyzing the Fourteenth Amend-ment's Due Process Clause with respect to a claim that exculpatoryevidence was suppressed. 52 John Brady and his co-defendant, Mr.

46. Id.47. See id. at 270.48. Id. The Court concluded its opinion, however, by stating that the suppression

of evidence and false testimony may have affected the outcome of the trial. Id. at 272.Admittedly, this language does speak in terms of "prejudicial impact" of the suppressionof evidence, but once again, the Court's use of the word "may" indicates its opinion onthis issue was merely dicta. Indeed, the Court did not premise its holding on therebeing prejudice to the defendant, and only in the final sentence, with no citation ofauthority, did the court speak in terms of prejudice.

49. In Brady, the Supreme Court noted that the "correct constitutional rule,"drawn from Mooney, Pyle, Alcorta, and Napue, was that "'suppression of evidencefavorable' to the accused was itself sufficient to amount to a denial of due process."Brady v. Maryland, 373 U.S. 83, 86-87 (1963) (quoting United States ex rel. Almeida v.Baldi, 195 F.2d 815, 820 (3d Cir. 1952) (emphasis added)).

50. See infra notes 86-201 and accompanying text.51. 373 U.S. 83 (1963).52. Today, Brady is considered a landmark decision that transformed criminal dis-

covery, but cases that immediately followed it either ignored its holding or severelymarginalized it. See, e.g., Moore v. Illinois, 408 U.S. 786, 798 (1972); Giles v. Maryland,386 U.S. 66, 74 (1967); Miller v. Pate, 386 U.S. 1, 6-7 (1967). Though Brady still isconsidered a heroic achievement protecting the constitutional rights of criminal defend-ants, Professor Scott Sundby contends that the Court has significantly narrowedBrady's scope from pre-trial discovery rights "to a post-trial remedy for government mis-

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Boblit, were convicted of murder and sentenced to death. 53 On July 9,1958, Boblit confessed that it was he who committed the actual homi-cide, not Brady.54 The two were tried separately, and the governmentwithheld evidence of Boblit's confession from Brady and his counseluntil a conviction had been secured.55

After discovering that the government had withheld Boblit's con-fession, Brady moved for post-conviction relief, and the Court of Ap-peals of Maryland sustained his claim that the government'ssuppression of the confession violated due process. 56 The U.S. Su-preme Court noted that the Court of Appeals of Maryland had prima-rily relied on United States ex rel. Almeida v. Baldi,57 a United StatesCourt of Appeals for the Third Circuit case. 58 The Court pointed outthat Baldi interpreted the holding in Pyle as meaning that "'suppres-sion of evidence favorable' to the accused was itself sufficient toamount to a denial of due process."59 The Court stated that the ruleannounced in Baldi, that the mere suppression of exculpatory evi-dence was a denial of due process, was the "correct constitutionalrule."

60

However, the Court then reached past this well-settled rule byintroducing the notion of "material evidence," and held-for the firsttime-"that the suppression by the prosecution of evidence favorableto an accused upon request violates due process where the evidence ismaterial either to guilt or to punishment irrespective of the good faithor bad faith of the prosecution."61 Thus, the Court in Brady for thefirst time held that (1) the defendant must make a "request" for theexculpatory evidence and (2) the evidence must be "material to eitherguilt or to punishment."62

It is not clear whether the Court, in Brady, intended to stray fromits prior precedent, which held that suppression of exculpatory evi-dence standing alone violates due process. By introducing the notionof materiality (i.e., by holding that only evidence that is "material ei-ther to guilt or to punishment" can fall within the purview of the Due

conduct." Scott E. Sundby, Fallen Superheroes and Constitutional Mirages: The Tale ofBrady v. Maryland, 33 McGEoRGE L.REv. 643, 644 (2002).

53. Brady v. Maryland, 373 U.S. 83, 84 (1963).54. Brady, 373 U.S. at 84.55. Id.56. Id. at 84-85.57. 195 F.2d 815 (3d Cir. 1952).58. Brady, 373 U.S. at 86.59. Id. at 87 (quoting United States ex rel. Almeida v. Baldi, 195 F.2d 815, 820 (3d

Cir. 1952)).60. Brady, 373 U.S. at 86.61. Id. at 87.62. Id.

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Process Clause), the Court may have narrowed the constitutionalharm.

63

On the other hand, the Court also stated that "[s]ociety wins notonly when the guilty are convicted but when criminal trials are fair;our system of the administration of justice suffers when any accused istreated unfairly."64 It can reasonably be inferred that the withholdingof favorable evidence regardless of the prejudicial impact that it ulti-mately may have on the trial is, in effect, treating the accused unfairlyand, thus, a violation of procedural due process. 6 5 Indeed, readingBrady's policy rationale along with its holding leads one to believethat the Court did not mean that for due process to be violated thesuppression of exculpatory evidence must be "prejudicial" to the out-come of the trial. Rather, the Court meant that the suppression ofexculpatory . evidence merely be "material," or in other words"favorable" to the defendant to violate the Due Process Clause. 66 Thisholding was the holding in Mooney v. Holohan,6 7 Pyle v. Kansas,68 Al-corta v.Texas, 69 and Napue v. Illinois70 and, therefore, it makes sensethat Brady simply restated those holdings, albeit by using the word"material" instead of the word "favorable." Moreover, this was theholding in Baldi, a case that Brady relied upon heavily. 7 1 Accord-ingly, one reasonable reading of Brady is that the Court held that thesuppression of favorable evidence standing alone violates due process,but a new criminal trial is not the appropriate remedy unless the sup-

63. Id.64. Id.65. For example, in Haupt v. T.D. Dillard, 17 F.3d 285, 287 (9th Cir. 1994), the

plaintiff alleged that the prosecutor and police officer intimidated the judge into chang-ing jury instructions. The plaintiff was ultimately acquitted of the underlying criminalcharges but later sued the police under § 1983 for violating his right to due process-afair trial-under the Fifth Amendment. The court held that "[t]he fact that [the plain-tiff] ultimately was acquitted speaks only to the amount of damages he suffered; it isirrelevant to whether he has a cause of action." Haupt, 17 F.3d at 287. One can extra-polate from Haupt that whether a constitutional violation occurs is mutually exclusivefrom the issue of whether prejudice or harm (in a criminal case, that being a conviction)ensues. The fact that one is acquitted relates only to the amount of damages he or she isentitled to receive for the constitutional violation.

66. For a discussion on what constitutes "favorable" evidence under Brady, seeBennett L. Gershman, Reflections on Brady v. Maryland, 47 S. TEx. L. REV. 685, 703-04(2006).

67. 294 U.S. 103 (1935).68. 317 U.S. 213 (1942).69. 355 U.S. 28 (1957).70. 360 U.S. 264 (1959).71. Brady, 373 U.S. at 86-87; Baldi, 195 F.2d at 820 (holding suppression of

"favorable" evidence standing alone violates procedural due process).

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pressed evidence is "material," or otherwise prejudicial to theaccused.

72

In 1985, the Court extended the Brady doctrine, as it had by thencome to be known, in United States v. Bagley73 to include the suppres-sion of impeachment evidence. In Bagley, the Court stated: "The hold-ing in Brady v. Maryland requires disclosure only of evidence that isboth favorable to the accused and 'material either to guilt or to pun-ishment.'" 74 The Court went on to explain that the materiality lan-guage in Brady concerned the possibility that the suppressed evidencecould have affected the ultimate outcome of the criminal trial.7 5

After reaffirming that the Brady doctrine is constitutionallybased in the Due Process Clause of the Fourteenth Amendment, 76 theCourt held that the touchstone inquiry that must be decided iswhether the defendant received a "fair trial."7 7 The Court thus con-cluded that a Brady violation results when suppressed evidence yieldsan unfair trial, and an unfair trial can only occur if the suppressedevidence was "material."78 Furthermore, the Court defined "materialevidence" as that evidence which, if suppressed, would "undermineconfidence in the outcome of the trial."79

Thus, in Bagley, the Court departed from its reliance on previouscases such as Mooney, Pyle, Alcorta, and Napue, as well as the ThirdCircuit's Baldi standard-that the mere suppression of favorable evi-dence constitutes a due process violation-by refocusing the analysison the issue of materiality. The Bagley Court, however, noted that itsmateriality test was not necessarily an element of due process but,rather, analogous to the prejudicial-error (or harmless-error) standardin criminal cases.8 0 The dissenting opinion of Justice Thurgood Mar-shall highlighted the fact that the court's primary consideration was

72. Brady did, however, unnecessarily narrow the scope of due process by requir-ing that the defendant make a request for exculpatory evidence, but the Court ulti-mately abandoned the "request" element in 1976. United States v. Agurs, 427 U.S. 97,107 (1976); see also Strickler v. Greene, 527 U.S. 263, 280 (1999) (recognizing the Courthas held a duty to disclose exculpatory information exists regardless of a defendant'srequest); Rosen, supra note 3, at 705 (stating that the Brady concept of materiality was"equivalent to the concepts of prejudice or harmless error courts employ in other areasof criminal law").

73. 473 U.S. 667 (1985).74. United States v. Bagley, 473 U.S. 667, 674 (1985) (quoting Brady, 373 U.S. at

87).75. Bagley, 473 U.S. at 674-75.

76. U.S. CONST. amend. XIV.77. Bagley, 473 U.S. at 675, 678.

78. Id. at 678.79. Id.80. See id. at 679-80, 680 n.9.

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whether the suppression of favorable evidence constituted "harmlesserror."

8 1

In Kyles v. Whitley,8 2 the Court again stressed that prejudicial-error review had been subsumed by the "materiality" requirement.The Kyles Court stated that once "a reviewing court applying Bagleyhas found constitutional error[,] there is no need for further harmless-error review."8 3 Because the Bagley materiality standard required aharmless-error analysis, the Court held that once a Bagley-error ex-isted, an additional harmless-error analysis would be redundant.8 4

Thus, pursuant to post-Brady cases, the Court has maintained that aBrady violation in the criminal context does not require a new crimi-nal trial unless the Brady violation is prejudicial.8 5

C. THE SUPREME COURT'S BRADY ANALYSIS LIMITS PREJUDICIAL-

ERROR OR HARMLESS-ERROR REVIEW TO THE

CRIMINAL CONTEXT

The United States Supreme Court's precedent discussed above isnotable for two reasons. First, prior to Brady v. Maryland,8 6 the Su-preme Court considered the withholding of exculpatory evidence,without any prejudice to the criminal defendant, to be a violation ofdue process under the Fourteenth Amendment. Second, the SupremeCourt's Brady cases thus far have been limited to only the criminalcontext, where the remedy sought is a new trial, not money damages.It is within this context and this context alone, that the SupremeCourt has introduced the concept of "materiality," or in other words,prejudicial error.8 7

81. See id. at 695-96 (Marshall, J., dissenting) (understanding the Court's materi-ality standard as a "harmless error" test and concluding that when the governmentsuppresses evidence that might impeach a sole witness, harmless error always results).Justice Marshall argued the harmless error test fails to acknowledge the reality that"[n]o prosecutor can know prior to trial whether such evidence will be of consequence attrial; the mere fact that it might be, however, suffices to mandate disclosure." Id. at 702-03 (majority opinion).

As Professor Richard Rosen stated, the Brady concept of materiality was"equivalent to the concepts of prejudice or harmless error courts employ in other areasof criminal law." Rosen, supra note 3, at 705. The Court developed the harmless-errorstandard applied in criminal cases beginning in Chapman v. California, 386 U.S. 18, 24(1967), which held that a conviction tainted by constitutional error must be set asideunless the error complained of "was harmless beyond a reasonable doubt."

82. 514 U.S. 419 (1995).83. Kyles v. Whitley, 514 U.S. 419, 435 (1995).84. Kyles, 541 U.S. at 435-36.85. See, e.g., Branks v. Dretke, 540 U.S. 668, 691 (2004); Strickler v. Greene, 527

U.S. 263, 282 (1999).86. 373 U.S. 83 (1963).87. Rosen, supra note 3, at 705 (stating the Brady concept of materiality was

"equivalent to the concepts of prejudice or harmless error courts employ in other areasof criminal law").

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This is an important point, as prejudicial error is vital in criminalcases because the remedy sought under Brady in the criminal settingis not money damages but, rather, a new trial. The logic in prejudi-cial-error analysis is that if the defendant suffered no prejudice fromthe constitutional error, then a new trial is not required. Thus, in thecriminal context, there is no harm to a defendant who would havebeen convicted in the absence of the withholding of exculpatoryevidence.

However, prejudicial-error analysis has no place in determiningwhether money damages, as opposed to a new trial, should beawarded pursuant to 42 U.S.C. § 1983 in civil cases. As the Court re-peatedly held prior to Brady, in cases such as Mooney v. Holohan,8

Pyle v. Kansas,8 9 Alcorta v. Texas, 90 and Napue v. Illinois,91 merewithholding of exculpatory evidence is itself a constitutional harm.9 2

Additionally, when Brady and its progeny introduced the concept ofprejudicial error, or "materiality," to the analysis, it did so only to de-termine whether a new trial was warranted in the criminal context.9 3

In the civil context, the question is not whether the plaintiff, whohas been acquitted yet also denied Brady evidence, deserves a newtrial. Instead, the question becomes how much harm has the plaintiffsuffered by the withholding of exculpatory evidence. That question,then, is related to the amount of damages the plaintiff is entitled toreceive, not to the initial inquiry of whether the plaintiff may state a§ 1983 cause of action for a Brady violation. 94

Unfortunately, the federal circuits that have considered this issuehave not agreed. Instead of recognizing that prejudicial-error analysishas no place in civil Brady cases, as opposed to the criminal context,these courts continue to apply the wrong framework-they focus onwhether the civil Brady plaintiff has suffered harm warranting a newcriminal trial, not whether the plaintiff simply has suffered injuryfrom the Brady violation.

88. 294 U.S. 103 (1935).89. 317 U.S. 213 (1942).90. 355 U.S. 28 (1957).91. 360 U.S. 264 (1959).92. See supra notes 16-49 and accompanying text.93. In Strickler v. Greene, 527 U.S. 263, 281-82 (1999), the Court acknowledged

that the term "Brady violation' is sometimes used to refer to any breach of the broadobligation to disclose exculpatory evidence." The Court went on to note, however, that aBrady violation is not of sufficient magnitude to require a new criminal trial unless theviolation was prejudicial to the accused. See id.

94. In a non-Brady context, the plaintiff in Haupt v. T.D. Dillard, 17 F.3d 285, 287-88 (9th Cir. 1994), claimed a due process violation for denial of a fair criminal trial,pursuant to § 1983, notwithstanding his acquittal. The Ninth Circuit held that "[tihefact that [the plaintiff] ultimately was acquitted speaks only to the amount of damageshe suffered; it is irrelevant to whether he has a cause of action." Id. at 287.

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III. FEDERAL APPELLATE CASES DENYING PLAINTIFFS ACIVIL BRADY RIGHT IN THE ABSENCE OF ACRIMINAL CONVICTION

The United States Supreme Court has yet to decide whether aplaintiff who has not been criminally convicted may state a cause ofaction under Brady v. Maryland9 5 pursuant to 42 U.S.C. § 1983.96

However, five federal circuits have examined the issue. These courtsgenerally have held that where a plaintiff has not been convicted crim-inally, the suppression of exculpatory evidence by the police is not ac-tionable under § 1983 because the evidence cannot be deemedmaterial, or in other words, the plaintiff has not been prejudiced bythe suppression. 97 Such holdings assume that the prejudicial-errorprong under the Brady doctrine is implicit in the Due Process Clauseof the Fourteenth Amendment; the discussion above, however, clari-fies that is not the case.9 s

The federal circuits have missed the mark on this issue. As theSupreme Court discussed in United States v. Bagley9 9 and Kyles v.Whitley,100 prejudicial error is not an element of due process but,rather, it is a part of the appellate review conducted in criminal casesto determine whether a new trial is warranted.1 0 1 Accordingly, the

95. 373 U.S. 83 (1963).96. Bielanski v. County of Kane, 550 F.3d 632, 644 (7th Cir. 2008) ("The Supreme

Court has yet to address the situation alleged here, where certain evidence was with-held by the prosecution and yet the defendant was still acquitted.").

97. See Morgan v. Gertz, 166 F.3d 1307, 1310 (10th Cir. 1999) (finding no Bradyliability because "a defendant who is acquitted cannot be said to have been deprived ofthe right to a fair trial"); Flores v. Satz, 137 F.3d 1275, 1278 (11th Cir. 1998) ("Plaintiff,however, was never convicted and, therefore, did not suffer the effects of an unfair trial.As such, the facts of this case do not implicate the protections of Brady."); Taylor v.Waters, 81 F.3d 429, 435-36 (4th Cir. 1996) (holding that, under the Fourteenth Amend-ment's Due Process Clause, no "settled authority" exists to conclude that a police inves-tigator's failure to disclose exculpatory evidence to an unconvicted plaintiff isunconstitutional); McCune v. City of Grand Rapids, 842 F.2d 903, 907 (6th Cir. 1988)(holding no Brady violation existed and stating that "[blecause the underlying criminalproceeding terminated in appellant's favor, he has not been injured by the act of wrong-ful suppression of exculpatory evidence"); see also Rogala v. District of Columbia, 161F.3d 44, 55-56 (D.C. Cir. 1998) (adopting decision of district court that police officers didnot violate due process by failing to preserve witness because plaintiffs were never pros-ecuted); Gregory v. Oliver, 226 F. Supp. 2d 943 (N.D. Ill. 2002) (holding no Brady claimwhere plaintiff acquitted at criminal trial). But see Mosely v. City of Chicago, No. 6 C6314, 2007 WL 2608517 (N.D. Ill. Sept. 4, 2007); Gomez v. Riccio, No. 02 C 5911, 2005WL 2978955 (N.D. Ill. Nov. 1, 2005); Craig v. Chi. Police Officers, No. 05 C 0172, 2005WL 1564982 (N.D. Ill. June 9, 2005); Kidd v. City of Chicago, No. 02 C 9534, 2003 WL22243938 (N.D. Ill. Sept. 26, 2003); Carroccia v. Anderson, 249 F. Supp. 2d 1016 (N.D.Ill. 2003).

98. See supra notes 16-94 and accompanying text.99. 473 U.S. 667 (1985).

100. 514 U.S. 419 (1995).101. See Kyles v. Whitley, 514 U.S. 419, 435 (1995); United States v. Bagley, 473

U.S. 667, 679-80, 680 n.9 (1985); Rosen, supra note 3, at 705. For the origin of the

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analyses of these courts should be rejected because prejudicial-errorreview is not applicable under § 1983 claims alleging Bradyviolations.'0 2

A. THE TENTH CIRCUIT: MORGAN V. GERTZ

In Morgan v. Gertz,l03 the United States Court of Appeals for theTenth Circuit dealt with the issue of whether a plaintiff who has beenacquitted at a criminal trial can bring a 42 U.S.C. § 1983 lawsuitclaiming deprivation of due process on the ground that the police in-tentionally destroyed exculpatory evidence before trial.'0 4 AlbertMorgan was tried for the sexual assault of his stepdaughter.105 Whenthe police interviewed the stepdaughter, she indicated that she hadnot been sexually abused.' 0 6 After some time, her biological fatherrequested that the police interview her again, and this time she statedthat Morgan had sexually assaulted her.'0 7 The police, however,taped the second interview over the recording of the first interview.10 8

During discovery, the prosecutor disclosed that the stepdaughteroriginally indicated that she had not been sexually abused.10 9 Theprosecutor, knowing that the first interview had been effectively de-stroyed, prepared a summary of that interview for Morgan." 0 The

harmless-error (or prejudicial-error) test in criminal cases, see Chapman v. California,386 U.S. 18, 24 (1967). The harmless-error test articulated in Chapman has typicallybeen limited to only the criminal context. Meehan Rasch, California's Dueling Harm-less Error Standards: Approaches to Federal Constitutional Error in Civil Proceedingsand Establishing the Proper Test for Dependency, 35 W. ST. U. L. REv. 433, 434 (2008).Though habeas corpus review is generally related to the criminal context, the SupremeCourt has held that the Chapman harmless-error review standard does not apply onhabeas review. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993). By removingChapman harmless-error review from habeas proceedings, "the Court [has increased]the possibility that a conviction will stand despite a constitutional error that had a prej-udicial impact on the verdict." Leslie R. Stern, Comment, Constitutional Law-LessOnerous Harmless Error Standard Applies on Habeas Corpus Review-Brecht v. Abra-hamson, 113 S. Ct. 1710 (1993), 28 SUFFOLK U. L. REv. 172, 180-81 (1994).

102. In addition to the cases discussed in this section, two judges on a panel of theNinth Circuit Court of Appeals have expressed their views as to whether a plaintiff whohas not been convicted of a crime may sue the police under § 1983 for Brady violations.Judge Gwin has stated that without a conviction, a Brady claim cannot stand. Smith v.Almada, 640 F.3d 931, 945 (9th Cir. 2011) (Gwin, J., specially concurring). On the otherhand, Judge Nelson believes that a criminal conviction is no bar to asserting a civilBrady claim. Id. at 948 (Nelson, J., dissenting). The Ninth Circuit, however, has nomajority view on this issue.

103. 166 F.3d 1307 (10th Cir. 1999).104. Morgan v. Gertz, 166 F.3d 1307, 1309 (10th Cir. 1999).105. Morgan, 166 F.3d at 1308.106. Id.107. Id.108. See id.109. Id.110. Id.

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jury convicted Morgan of the crime, but the trial judge did not enter aconviction, instead finding that the police's destruction of the first in-terview was willful and egregious and that Morgan had been denied afair trial under Brady.1 1 ' The court entered a judgment of acquittal,and one year later, Morgan sued the police for the mishandling of ex-culpatory evidence.1 12

The Tenth Circuit began its analysis by distinguishing the case atbar from Brady v. Maryland"1 3 by noting that Brady dealt with thewrongful nondisclosure of evidence, and the case at bar concerned thewrongful non-preservation of evidence. 1 14 The court, however, contin-ued its analysis under the Brady framework. Citing United States v.Bagley,1 15 Kyles v. Whitley, 116 United States v. Agurs,1 17 and Brady(in essence Brady and its progeny), the court stated that "[tihe dutiesto disclose and preserve impeachment/exculpatory evidence aregrounded in the due process right to a fair trial."1 18 The court reliedon Bagley for the proposition that the withholding or destroying of evi-dence violates due process only if the defendant has been denied a fairtrial. 119

The court then examined a dichotomy of cases involving Bradyclaims under § 1983. First, in cases where no conviction resulted, thecourt noted the cases held that a defendant could not have been de-nied a fair trial and, therefore, a cause of action could not have ex-isted.' 20 In the second set of cases, where the court had affirmed butlater overturned a plaintiffs conviction in a collateral proceeding, aplaintiff could pursue a civil Brady claim. 121 With little other analysisconducted, the Tenth Circuit relied on the first set of cases and foundthat because Morgan had not been convicted, his case fell within thegroup of cases that held the plaintiff could not state a cause of ac-tion. 122 The Tenth Circuit held that "[riegardless of any misconductby government agents before or during trial, a defendant who is ac-

111. Id. at 1308-09.112. Id.113. 373 U.S. 83 (1963).114. Morgan, 166 F.3d at 1309.115. 473 U.S. 667 (1985).116. 514 U.S. 419 (1995).117. 427 U.S. 97 (1976).118. Morgan, 166 F.3d at 1310.119. Id.120. Id. (citing Rogala v. District of Columbia, 161 F.3d 44, 55-56 (D.C. Cir. 1998);

Taylor v. Waters, 81 F.3d 429, 434 n.4, 435-36 (4th Cir. 1996); McCune v. City of GrandRapids, 842 F.2d 903, 907 (6th Cir. 1988); Nygren v. Predovich, 637 F. Supp. 1083, 1087(D. Colo. 1986)).

121. Morgan, 166 F.3d at 1310 (citing McMillian v. Johnson, 88 F.3d 1554, 1566-69& n.12 (11th Cir. 1996); McDonald v. Illinois, 557 F.2d 596, 603 (7th Cir. 1977)).

122. Morgan, 166 F.3d at 1310.

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quitted cannot be said to have been deprived of the right to a fairtrial."

1 23

In affirming the dismissal of Morgan's cause of action, the TenthCircuit misconstrued the Brady analysis in the context of § 1983. Thecourt proceeded with the premise that Morgan's action was in thecriminal setting, in which the remedy sought is a new trial. Moreover,because the court held that his acquittal precluded a finding of an un-fair trial, it assumed that he was not entitled to relief. In essence, thecourt conducted prejudicial-error review and held that Morgan hadnot been denied due process of law under the Brady theory becausethe destruction of the exculpatory evidence was not prejudicial to Mor-gan's criminal case; indeed, Morgan had been acquitted notwithstand-ing the destruction of the favorable evidence.

However, here, Morgan did not request a new trial; he sued under§ 1983 for money damages. 124 Thus, the fact that he had been acquit-ted is irrelevant. Rather, the focus in his case should have been di-rected at whether the police officer's destruction of exculpatoryevidence, standing alone, violated his constitutional right to due pro-cess. Under the Court's holdings in Mooney v. Holohan,12 5 Pyle v.Kansas,126 Alcorta v. Texas,127 and Napue v. Illinois,128 and even ar-guably Brady, that answer would have been yes. 129 Nevertheless, theTenth Circuit confused the constitutional due process issue with theissue of prejudicial-error review. Consequently, Morgan was deniedrelief because he could not prove that the error prejudiced him. 130

This, of course, is an absurd result because prejudice in a civil actionis, in essence, being injured or damaged. Morgan certainly had suf-fered an injury through the police's destruction of favorable evi-dence. 13 1 The police's misconduct resulted in a charge of sexualassault of his stepdaughter. 13 2 And the mere charge, along with all ofits attendant embarrassment and emotional trauma, should havebeen sufficient for purposes of proving damages.

123. Id.124. Id. at 1309.

125. 294 U.S. 103 (1935).126. 317 U.S. 213 (1942).127. 355 U.S. 28 (1957).128. 360 U.S. 264 (1959).129. See supra notes 16-72 and accompanying text.

130. Morgan, 166 F.3d at 1310.

131. See id. at 1308.132. Id.

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B. THE SIXTH CIRCUIT: MCCUNE V. CITY OF GRANvD RAPIDS

In McCune v. City of Grand Rapids,133 James McCune was onduty as a Grand Rapids Parks patrol officer when the police asked himto act as an undercover officer to investigate thefts and drugcrimes.13 4 To McCune's surprise, however, officers arrested him forhis involvement in activities he undertook in furtherance of the po-lice's own investigation. 13 5 When exculpatory evidence of McCune'sinvolvement as an undercover officer came to light, the police sup-pressed it.1

36 McCune remained incarcerated on criminal charges for

nearly a year before the prosecutor finally dropped the case. 1 37 One ofthe allegations McCune brought against the officers was a 42 U.S.C.§ 1983 claim based on the withholding of exculpatory evidence. 138

The United States Court of Appeals for the Sixth Circuit cursorilyexamined McCune's Brady v. Maryland13 9 claim by disposing of it in afinal paragraph with no citation of authority.1 40 Incredibly, the courtsimply held that "[b]ecause the underlying criminal proceeding termi-nated in [McCune's] favor, he has not been injured by the act of wrong-ful suppression of exculpatory evidence."14 1 The Sixth Circuit'sholding on the Brady issue was based on no real analysis and, thus,

133. 842 F.2d 903, 904 (6th Cir. 1988).134. McCune v. City of Grand Rapids, 842 F.2d 903, 904 (6th Cir. 1988).135. McCune, 842 F.2d at 904.136. Id.137. Id.138. Id. at 905.139. 373 U.S. 83 (1963).140. See McCune, 842 F.2d at 907.141. Id. But the court did state in dicta "[Tihe wrongful suppression of exculpatory

evidence may be relevant to [a plaintiffs] claim of malicious prosecution." Id. Thereexists a circuit split concerning whether a malicious prosecution claim is viable as aconstitutional cause of action under § 1983 in federal court. The Second, Third, Fourth,Fifth, and Seventh Circuits allow plaintiffs to bring a malicious prosecution claim under§ 1983. See Goodwin v. Metts, 885 F.2d 157 (4th Cir. 1989); Raysor v. Port Auth., 768F.2d 34 (2d Cir. 1985); Losch v. Borough of Parkesburg, 736 F.2d 903 (3d Cir 1984);Inada v. Sullivan, 523 F.2d 485 (7th Cir. 1975). On the other hand, the First, Sixth,Eighth, and Ninth Circuits have declined to allow a malicious prosecution claim under§ 1983. See Kohl v. Casson, 5 F.3d 1141 (8th Cir. 1993); Morales v. Ramirez, 906 F.2d784 (1st Cir. 1990); Usher v. City of Los Angeles, 828 F.2d 556 (9th Cir. 1987); Vasquezv. City of Hamtramck, 757 F.2d 771 (6th Cir. 1985). The Supreme Court has failed inits effort to resolve the circuit split, issuing six separate opinions in Alrbight v. Oliver,510 U.S. 266 (1994). Subsequently, with respect to malicious prosecution claims in fed-eral court, the Tenth Circuit aptly noted, "Albright [has] muddied the waters ratherthan clarified them." Taylor v. Meacham, 82 F.3d 1556, 1561 n.5 (10th Cir. 1996).Thus, it still is unclear whether a malicious prosecution claim is viable in federal court.While not necessarily a conclusive reason, the lack of clarity provides some justificationfor allowing a civil Brady claim to be brought by criminally innocent plaintiffs. Other-wise, these plaintiffs may have no remedy for a vindictive prosecution, based on thewithholding of exculpatory evidence, in federal court.

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the court never analyzed the dichotomy between a Brady claimbrought in the civil context as opposed to the criminal context.

Moreover, the assertion that McCune did not suffer any injuryprovides a clear example of why civil Brady claims under § 1983 can-not be analyzed under a framework applicable to criminal law. Cer-tainly, McCune was "unharmed" in the sense that he did not have anunfair trial. That is, however, only because he never received a trial.It is indisputable, though, that he was injured civilly by the withhold-ing of exculpatory evidence. The police thanked McCune for his ser-vice to them by arresting him, jailing him for nearly a year, and thensuppressing evidence pertaining to his innocence, thus likely prolong-ing his detention. There is no doubt that McCune was injured. Never-theless, because the Sixth Circuit addressed his claim within thecriminal law framework, it denied him relief, and the police escapedwithout punishment. Such a result is, to say the least, shocking. Hadthe court correctly examined United States Supreme Court precedentand held that the mere withholding of the exculpatory evidence vio-lated McCune's due process rights, he would have received the com-pensation that he deserved.

C. THE ELEVENTH CIRCUIT: FLORES v. SATZ

In Flores v. Satz,142 Miguel Flores alleged that his FourteenthAmendment due process rights were violated when the prosecutorwho brought charges against him withheld exculpatory evidence. 143 Atrial was never held, and Flores was never convicted of the charges. 144

The United States Court of Appeals for the Eleventh Circuit quicklydisposed of the Brady v. Maryland145 issue by holding that, becauseFlores had not been criminally convicted of the charged crime, he didnot "suffer the effects of an unfair trial."1 46 Consequently, the courtfound no due process violation could have resulted. 14 7

In support of its holding, the court relied on two criminal casesfrom the United States Court of Appeals for the Fifth Circuit: UnitedStates v. McKinney148 and United States v. O'Keefe.149 However, bothMcKinney and O'Keefe were criminal cases, not civil cases brought

142. 137 F.3d 1275 (11th Cir. 1998).143. Flores v. Satz, 137 F.3d 1275, 1277-78 (11th Cir. 1998). The defendants in Flo-

res were prosecutors, who, the court noted, were "probably entitled to absolute immu-nity." Flores, 137 F.3d at 1278 n.6. The absolute immunity defense, however, was notargued on appeal. Id.

144. Id. at 1277.145. 373 U.S. 83 (1963).146. Flores, 137 F.3d at 1278.147. See id.148. 758 F.2d 1036 (5th Cir. 1985).149. 128 F.3d 885 (5th Cir. 1997).

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under 42 U.S.C. § 1983. Moreover, McKinney was not even relevant tothe issue presented in Flores. In McKinney, the question was whetherthe timing of the disclosure had prejudiced the defendant by causing awrongful conviction, not whether a criminally innocent plaintiff couldstate a civil Brady claim. 150

Again, like the United States Courts of Appeals for the Tenth andSixth Circuits, it made little sense for the Eleventh Circuit to analyzea civil Brady claim under the same framework applicable to Bradyclaims made in criminal cases. By employing prejudicial-error analy-sis, the court concluded that Flores was not entitled to a new trialeven though he had not sought a new trial in the first place. Floressought money damages for the wrongful suppression of exculpatoryevidence, which violated his constitutional rights. Because the courtfailed to recognize that civil Brady cases require a different analysisthan the prejudicial-error analysis applicable to criminal cases, Floreswas left with no remedy.

D. THE FOURTH CIRCUIT: TAYLOR V. WATERS

In Taylor v. Waters,15 1 Clarence Taylor sued an investigator in-volved in prosecuting a drug charge against him under, inter alia, aBrady v. Maryland15 2 theory on the ground that the investigatorfailed to disclose exculpatory evidence to the prosecutor. 15 3 The pros-ecutor dismissed the charges two months after Taylor's arrest andbefore the preliminary hearing.15 4

The United States Court of Appeals for the Fourth Circuit ana-lyzed Taylor's Brady claim under a qualified immunity framework. 15 5

The court focused not on whether the investigator's withholding of ex-culpatory evidence was a constitutional violation but, rather, whetherthe law was "clearly established" that such conduct was a violation ofdue process. 156 On this issue, the court noted that at the time, theUnited States Supreme Court had held that pre-trial detainees couldinvoke the Fourth Amendment, not due process under the FourteenthAmendment. 157 Thus, the court held that Taylor's claim failed be-cause he had not clearly established that the investigator's conductviolated the Fourteenth Amendment. 158

150. United States v. McKinney, 758 F.2d 1036, 1049-50 (5th Cir. 1985).151. 81 F.3d 429 (4th Cir. 1996).152. 373 U.S. 83 (1963).153. Taylor v. Waters, 81 F.3d 429, 432 (4th Cir. 1996).154. Taylor, 81 F.3d at 433.155. Id. at 435.156. Id.157. See id. at 435-36 (citing Gerstein v. Pugh, 420 U.S. 103, 125 n.27 (1975)).158. Id. at 436.

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The Taylor court's analysis is weak for a number of reasons.First, the court never decided the substantive issue of whether thewithholding of exculpatory evidence, without a conviction, violatesdue process. 159 Instead, it merely considered whether the law hadclearly established that such conduct violated substantive due processas part of its qualified immunity analysis. 160 Second, the courtframed Taylor's claim as one alleging prosecution without probablecause, as opposed to one under a Brady theory.16 1 What Taylor al-leged, however, was that the investigator's "failure to disclose exculpa-tory information . . . to the prosecutor violated his constitutionalrights," namely "his right to due process of law as guaranteed underthe Fourteenth Amendment." 16 2 Thus, clearly, the court should haveanalyzed Taylor's claim within the Brady context-procedural dueprocess-as opposed to a malicious prosecution claim.

Third, the court acknowledged Brady's viability as constitutionallaw, but pointed out that Brady protected only the right to a "fairtrial," and Taylor never received a trial.'6 3 The Taylor court per-formed little analysis except to simply parse Brady's language of aright to a fair trial and, in conclusory fashion, asserted that no trialoccurred. However, the court's superficial analysis shows only that itwould not find prejudicial error notwithstanding a due process viola-tion. Had Taylor sought the remedy of a new trial, there would be noinjury because no wrongful conviction occurred in the first place.

Ultimately, Taylor sought money damages for having to defendagainst charges, 16 4 so he could have been injured notwithstanding thefact that he did not stand trial. To be sure, the injury here would bethe humiliation and financial hardship resulting from the need to de-fend a criminal case. Thus, like the other federal cases denying reliefto non-convicted plaintiffs who alleged a civil Brady claim, in Taylor,the Fourth Circuit incorrectly applied the prejudicial-error analysis by

159. See id. at 435-36.160. See id. at 435. "The doctrine of qualified immunity protects government offi-

cials 'from liability for civil damages insofar as their conduct does not violate clearlyestablished statutory or constitutional rights of which a reasonable person would haveknown.'" Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citations omitted). To deter-mine whether a government official is entitled to qualified immunity from a damagesclaim, a two-part inquiry is employed. Callahan, 555 U.S. at 232. The court must de-termine whether the facts alleged by the plaintiff state a constitutional claim. Id. Thecourt also must determine whether the constitutional right alleged to be violated by thedefendants was "clearly established" at the time of the defendant's alleged misconduct.Id. Courts are not bound to analyze these two prongs in a particular order. Id. at 242.

161. Taylor, 81 F.3d at 436.162. Id. at 435.163. See id. at 436 n.5.164. Id. at 432.

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22 CREIGHTON LAW REVIEW [Vol. 45

failing to distinguish a civil Brady claim from a claim for a new trial inthe criminal law context.

E. THE SEVENTH CIRCUIT

1. Christman v. Hanrahan

In Christman v. Hanrahan,165 the United States Court of Appealsfor the Seventh Circuit confronted the issue of whether evidence thatthe prosecution temporarily suppressed but disclosed before the end oftrial, resulted in a violation of procedural due process, notwithstand-ing the plaintiffs ultimate acquittal. 166 The plaintiff, DonaldChristman, allegedly killed a storekeeper during an attempted rob-bery on November 6, 1970.167 The victim's wife witnessed the killing,and four months later at a police lineup, she identified the plaintiff asthe killer. 168 Soon thereafter, however, she called the police to reportthat she was not sure whether the plaintiff was the killer.16 9 The po-lice allegedly filed the wife's partial-recantation of the identification ina supplemental report, and the police and prosecutor allegedly alteredthe report during discovery. 170

On appeal, the Seventh Circuit began its analysis by assumingthat the allegations in the complaint were true (as required under thestandard of review); the court found that the police and the prosecutor"were guilty of serious misconduct." 17 1 The court stressed, however,that a constitutional deprivation of liberty does not necessarily resultjust because exculpatory evidence has been withheld.1 72 Citing Bradyv. Maryland,1 73 the Seventh Circuit noted, "If evidence concerning thetelephone call had been suppressed until after the trial was concluded,and if the jury had returned a guilty verdict, unquestionably plaintiffwould have been deprived of his liberty without due process."174 Thecourt stated that, although it did "not condone the defendants' egre-gious misconduct, the trial itself, viewed as an entirety, was not fun-damentally unfair."' 75

The court considered two theories to determine whether the plain-tiff was deprived of a federally protected right. 176 The first theory was

165. 500 F.2d 65 (7th Cir. 1974).166. Christman v. Hanrahan, 500 F.2d 65, 66 (7th Cir. 1974).167. Christman, 500 F.2d at 66.168. Id.169. Id.170. Id.171. Id. at 67.172. Id.173. 373 U.S. 83 (1963).174. Christman, 500 F.2d at 67.175. Id.176. Id.


that a plaintiff has a constitutional right to immediate disclosure ofmaterially favorable evidence, and the government's failure to imme-diately disclose that evidence, even if harmless, violates that right. 177

The second theory considered by the court was that a plaintiff has aright to a fair trial, so that the non-disclosure of materially favorableevidence violates that right only if the non-disclosure has "some preju-dicial impact on the defense."' 7 8 The court accepted the second the-ory, denying the plaintiff relief.17 9 The court conceded that the wife'stelephone call partially recanting her identification of the plaintiff wasBrady evidence,' 8 0 but it based its holding on the fact that the timingof the disclosure of the telephone call did not ultimately prejudice theplaintiff; that is, the delayed disclosure did not deprive the plaintiff ofa fair criminal trial.' 8 '

Once again, the Seventh Circuit-like the other courts-analyzedChristman's civil Brady claim under the criminal law framework. Byrelying on criminal law prejudicial-error analysis, the court failed torecognize that the relief Christman sought was not a new trial, butmoney damages.' 8 2 The Christman court left open one point of inter-est: although the court denied Christman's relief because of lack ofprejudice, it avoided the issue of "whether a delayed disclosure mightbe sufficiently prejudicial to deprive an accused of a fair trial notwith-standing his acquittal."1 83 Thus, the Seventh Circuit left open the in-quiry of whether a conviction at trial is necessary to state a Bradyclaim under 42 U.S.C. § 1983. In Bielanski v. County of Kane, 3 how-ever, the Seventh Circuit closed that issue nearly thirty-five yearslater.

2. Bielanski v. County of Kane

In Bielanski v. County of Kane,185 Lorri Bielanski was only fifteenyears old when she "was falsely accused of sexually abusing [her] six-year-old neighbor."1 8 6 She was acquitted of all charges before shefiled a 42 U.S.C. § 1983 lawsuit against a police officer, among others,based on the withholding of exculpatory evidence.' 8 7 She claimedthat the police withheld the following evidence from her: that (1) the

177. Id.178. Id. at 67-69.179. Id. at 67, 69.180. Id. at 68.181. See id. at 68-69.182. See id. at 66.183. Id. at 68 n.2.184. 550 F.3d 632 (7th Cir. 2008).185. 550 F.3d 632 (7th Cir. 2008).186. Bielanski v. County of Kane, 550 F.3d 632, 633 (7th Cir. 2008).187. Bielanski, 550 F.3d at 633-35.

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child victim was on medication for Attention Deficit HyperactivityDisorder; (2) the victim had previously acted out sexual acts and en-gaged in sexually inappropriate behavior; and (3) the victim's parentshad suggested to the victim that somebody had sexually abused himbefore the victim accused Bielanski. l8 8 After Bielanski discoveredthat the police had failed to disclose this information, which the courtaccepted as "material," she filed a § 1983 claim seeking moneydamages. 8 9

The issue presented, which the United States Court of Appeals forthe Seventh Circuit noted had not been settled by the United StatesSupreme Court, was whether a plaintiff who had been acquitted in acriminal trial could state a claim for due process violations under aBrady v. Maryland, 90 theory against the police, where the police hadwrongfully withheld exculpatory evidence. 19 1 The court expresseddoubt "'that an acquitted defendant can ever establish the requisiteprejudice for a Brady violation.'"'192 The court held that "the harmBrady aims to prevent" is a trial unworthy of confidence and, here,Bielanski received a fair trial. 193 Moreover, because earlier disclosureof the withheld evidence would not have resulted in the dismissal ofthe charges against Bielanski prior to trial, she could not state a claimfor damages under Brady.194

Of course, like the other federal cases preceding it, the court inBielanski superficially analyzed whether a § 1983 plaintiff had beendenied the right to a fair criminal trial. The court concluded that Bie-lanski was undeserving of a Brady remedy, namely a new trial, be-cause she had been acquitted in the first instance. 19 5 However, it doesnot logically follow that she did not suffer an unfair trial generally, orthat she had not been prejudiced by having allegedly false accusa-tions, based upon withheld Brady evidence, lodged against her. For

188. See id. at 634, 643.189. Id. at 634-35.190. 373 U.S. 83 (1963).191. Bielanski, 550 F.3d at 643-44.192. Id. (quoting Carvajal v. Dominguez, 542 F.3d 561, 570 (7th Cir. 2008)). But see

Parish v. City of Chicago, 594 F.3d 551, 554 (7th Cir. 2010) ("[Plaintifl] may still have... a Brady-type due process claim after he was acquitted, if... prompt disclosure of thesuppressed evidence would have altered the prosecution's decision to proceed to trial.").Parish suggests that a plaintiff "may have" a Brady claim notwithstanding acquittal ofthe underlying criminal charges. Parish, 594 F.3d at 554. A due process violation, how-ever, should not be dependent on whether earlier disclosure of Brady evidence wouldhave altered the prosecutor's decision to proceed to trial. Instead, withholding Bradyevidence per se violates due process. See supra notes 16-85 and accompanying text.The impact of withholding the evidence concerns only damages, not whether a cause ofaction has been stated. See Haupt v. T.D. Dillard, 17 F.3d 285, 287-88 (9th Cir. 1994).

193. Bielanski, 550 F.3d at 645.194. Id.195. Id.

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example, she undoubtedly could have spent large sums of money todefend against possibly baseless claims, and she likely suffered injuryin the sense of damage to her reputation. Like the other circuits thathave addressed this issue, the Seventh Circuit failed to recognize thata plaintiff can be prejudiced in other ways than a wrongful conviction.

F. THE FEDERAL CIRCUITS HAVE INCORRECTLY ANALYZED CML

BRADY CLAIMS PURSUANT TO 42 U.S.C. § 1983 UNDERTHE CRIMINAL LAW FRAMEWORK

In each appellate decision discussed above, the courts, without al-ways explicitly saying so, focused their Brady v. Maryland,19 6 analy-sis on traditional prejudicial-error review applicable in criminal cases.However, this sort of review, as identified in United States v. Bag-ley1 9 7 and Kyles v. Whitley, 198 is appropriate only on either direct re-view of a criminal conviction or in post-conviction relief proceedings,where the criminal defendant seeks a new trial.19 9 In none of the fed-eral appellate cases discussed above did the plaintiff seek a new trial;none of them needed one. Instead, the plaintiffs sought money dam-ages for having to endure the pain, humiliation, and financial costsassociated with being accused of the crimes.20 0

In each of the federal cases discussed in the previous section, theplaintiffs were indeed prejudiced by the government's withholding ofexculpatory evidence. If the government would have disclosed the evi-dence, the plaintiffs may not have suffered the prejudices attachedwith being wrongfully accused of crimes, be it financial damage,reputational harm, or otherwise. When Brady is viewed in thislight-presenting a dichotomy between due process claims in thecriminal and civil context-the Fourteenth Amendment must be inter-preted so that an unconvicted criminal defendant will have a chanceto prove a Brady claim. The appellate decisions have strayed fromUnited States Supreme Court precedent and, as a result, have limitedBrady in a manner that the Supreme Court did not envision.

Finally, it is patently absurd to allow those who have been crimi-nally convicted to have their due process rights vindicated under

196. 373 U.S. 83 (1963).197. 473 U.S. 667 (1985).198. 514 U.S. 419 (1995).199. See Kyles v. Whitley, 514 U.S. 419, 435 (1995); United States v. Bagley, 473

U.S. 667, 679-80 & n.9 (1985).200. In a non-Brady context, the plaintiff in Haupt v. T.D. Dillard, 17 F.3d 285, 287-

88 (9th Cir. 1994), claimed a due process violation for denial of a fair criminal trial,pursuant to § 1983, notwithstanding his acquittal. The Ninth Circuit held, "The factthat [the plaintiff] ultimately was acquitted speaks only to the amount of damages hesuffered; it is irrelevant to whether he has a cause of action." Id. at 287.

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Brady, while denying that opportunity to those who are innocent. 20 1

The innocent defendants should receive full protection of the Four-teenth Amendment's Due Process Clause. Accordingly, the only rea-sonable interpretation of due process in the Brady context must bethat, where the police have withheld exculpatory evidence, a civilBrady claim is available, even if the plaintiff is criminally innocent.

IV. APPLYING A LIVING CONSTITUTIONAL THEORY TOHOLD THAT CRIMINALLY INNOCENT PLAINTIFFSCAN STATE A CIVIL BRADY CLAIM PURSUANTTO 42 U.S.C. § 1983

As discussed above, the Fourteenth Amendment's procedural DueProcess Clause, as interpreted by the United States Supreme Court,embodies the right to receive exculpatory evidence, regardless ofwhether the criminal defendant was ultimately convicted. 20 2 The ma-teriality prong under Brady v. Maryland20 3 is related only to the crim-inal context, for if the evidence was not "material" (i.e. it would notundermine confidence in the outcome of the trial) then a new trialwould be futile. 20 4 In the civil context, however, a Brady claim is im-portant to vindicate the rights of those subjected to prosecution wherethe police have withheld exculpatory evidence. This interpretation ofBrady in the context of due process-in a modern society-is espe-cially important in light of the prevalence of police misconduct used tosecure what often are wrongful convictions. This section analyzes acivil-Brady claim in the context of a living constitution. Furthermore,it argues that money damages are a critical component to thwart po-lice misconduct and protect the due process rights of those criminaldefendants who are found innocent.

A. A LIVING CONSTITUTIONAL THEORY

The concept of a living constitution may not have its origins withthe late Chief Justice John Marshall, but perhaps he said it best whenhe stated, "[We must never forget that it is a constitution we are ex-pounding."20 5 A living constitution is based on the idea that society is

201. See Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982) (holding legalanalysis should not yield absurd results).

202. See supra notes 86-94 and accompanying text.203. 373 U.S. 83 (1963).204. See Rosen, supra note 3, at 705 ("[Tlhe concept of materiality in a Brady case is

equivalent to the concepts of prejudice or harmless error courts employ in other areas ofcriminal law."); see also United States v. Bagley, 473 U.S. 667, 679-80 (1995) (analogiz-ing the materiality prong under Brady to harmless-error or prejudicial-error review).

205. M'Culloch v. Maryland, 17 U.S. 316, 407 (1819). More than 100 years later,Justice Louis Brandeis stated, "Our Constitution is not a straight-jacket. It is a livingorganism. As such it is capable of growth-of expansion and of adaptation to new condi-

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not static and, thus, interpretation of constitutional provisions mustadapt to changes in time.20 6 "Under this theory of constitutional in-terpretation, fidelity to original constitutional principles means thattheir scope of application must evolve with the underlying changes insociety."20 7 Indeed, constitutional interpretation cannot be so hingedto original intent that it stunts "human dignity in light of society'schanging value and needs."20 8

tions .... Because our constitution possesses the capacity of adaptation, it has enduredas the fundamental law of an ever developing people." A. BICKEL, THE LEAST DANGER-OUS BRANCH 107-08 (1962) (citing United States v. Moreland, 258 U.S. 433, 441 (1922)(Brandeis, J., dissenting)). And more recently, former Vice President Al Gore statedduring a presidential debate against then-Governor George W. Bush, "[The Constitu-tion ought to be interpreted as a document that grows with our country and our his-tory." Eric Claeys, The Limits of Empirical Political Science and The Possibilities ofLiving-Constitution Theory for a Retrospective on the Rehnquist Court, 47 ST. Louis U.L.J. 737, 742-43 (2003). Professor Eric Claeys contends, "Living-constitutional theoryhas more influence over constitutional interpretation and adjudication now than anyother political or constitutional theory." Id. at 742. The concept of a living constitu-tional theory, however, is not without its sharp criticism. Justice Black's poignant dis-sent in Griswold v. Connecticut, 381 U.S. 479, 522 (1965) (Black, J., dissenting), stated,

I realize that many good and able men have eloquently spoken and written,sometimes in rhapsodical strains, about the duty of this Court to keep the Con-stitution in tune with the times. The idea is that the Constitution must bechanged from time to time and that this Court is charged with a duty to makethose changes. For myself, I must with all deference reject that philosophy.The Constitution makers knew the need for change and provided for it.Amendments suggested by the people's elected representatives can be submit-ted to the people or their selected agents for ratification. That method ofchange was good for our Fathers, and being somewhat oldfashioned I must addit is good enough for me.

206. Adam Winkler, A Revolution Too Soon: Women Suffragists and the "LivingConstitution," 76 N.Y.U. L. REV. 1456, 1463-64 (2001).

207. Id. at 1464. Winkler quotes Professor Charles Reich's famous articulation of aliving constitutional theory as interpreting a constitution so that it

must keep changing in its application or lose even its original meaning. Thereis no such thing as a constitutional provision with a static meaning. If it staysthe same while other provisions of the Constitution change and society itselfchanges, the provision will atrophy.... A constitutional provision can main-tain its integrity only by moving in the same direction and at the same rate asthe rest of society. In constitutions, constancy requires change.

Id. at 1463-64 (quoting Charles A. Reich, Mr. Justice Black and the Living Constitution,76 HARv. L. REV. 673, 735-36 (1963)). Professor Strauss maintains, "[The] whole idea ofa living constitution is that it adapts and changes, so people are not irrevocably boundby decisions made in the distant past." STRAUSS, supra note 15, at 100. To those whosupport the idea of original interpretation, Professor Strauss asks, "[Wihy should weallow people who lived long ago, in a different world, to decide fundamental questionsabout our government and society today?" Id. at 44.

208. Arlin M. Adams, Justice Brennan and the Religion Clauses: The Concept of a"Living Constitution," 139 U. PA. L. REV. 1319, 1319 (1991). A living constitutionalist,however, does not interpret the Constitution without an eye toward the text and his-tory. On the contrary, "even the strongest proponents" of a living Constitution "appreci-ate that the legitimacy of constitutional review depends on the courts preserving somelink between what they do and the written Constitution and the political tradition fromwhich it emerged." David M. Brown, Tradition and Change in Constitutional Interpre-tation: Do Living Trees Have Roots? 19 NAT'L J. CONST. L. 33, 100 (2005).

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In the words of William Lloyd Garrison, all constitutions are"Agreements with Hell."20 9 This is because constitutions are not pre-cise, and they are far from perfect. Thus, Professor Jack Balkin, likeother living constitutional theorists, has explained that loyalty to aconstitution "requires a leap of faith in the document and the institu-tions of government based on the document. To interpret the docu-ment faithfully, we must buy into the constitutional project and makeit our own project."2 10 Professor David Strauss extols the notion of aliving constitution, explaining a constitution of and for the people ismeaningless unless it is able to adapt to the needs of present soci-ety.21 1 Furthermore, President Woodrow Wilson once remarked, asthe will of the American people changes, there must be "normal andlegitimate alterations of... constitutional understanding."2 12

In this sense, the living constitution should be thought of as aneternally enduring document and, as such, it must meet the necessi-ties of a nation shaped by progress and adaptation.2 13 This Articlehas demonstrated that the United States Supreme Court never in-tended for criminally innocent parties to be denied the right to suepolice officers for Brady violations under 42 U.S.C. § 1983.214 The fol-lowing section argues that, alternatively, in light of the prevalence ofpolice misconduct, the Fourteenth Amendment should be interpretedto allow such lawsuits under our living Constitution.

A. INTERPRETING BRADY AS A PROCEDURAL DUE PROCESS RIGHT

AFFORDED TO THE CRIMINALLY INNOCENT IN LIGHT OF

THE PREVALENCE OF POLICE MIscONDUCT IN

TODAY'S SOCIETY

There is little dispute that, in recent years, a vast number of inno-cent people have been convicted of crimes. 2 15 While many factors con-

209. Interestingly, this phrase came from Garrison's proposition in 1843 at the Mas-sachusetts Anti-Slavery Society, where he stated, "That the compact which exists be-tween the North and South is 'a covenant with death, and an agreement withhell'-involving both parties in atrocious criminality; and should be immediately an-nulled." WALTER M. MERRILL, AGAINST WIND AND TIDE: A BIOGRAPHY OF WM. LLOYDGARRISON 205 (1963).

210. Jack M. Balkin, Original Meaning and Constitutional Redemption, 24 CONST.CoMMENT. 427, 439 (2007).

211. See STRAUSS, supra note 15, at 1-3.212. WOODROW WILSON, CONSTITUTIONAL GOVERNMENT IN THE UNITED STATES 50

(1908).213. See STRAUSS, supra note 15, at 100.214. See supra notes 16-94 and accompanying text.215. See Stanley Z. Fisher, Convictions of Innocent Persons in Massachusetts: An

Overview, 12 B.U. PUB. INT'L. L.J. 1, 1-3 (2002) (collecting literature documenting casesnationwide of wrongfully convicted individuals); see Daniel Givelber, Meaningless Ac-quittals, Meaningful Convictions: Do We Reliably Acquit the Innocent? 49 RUTGERS L.REv. 1317, 1319-20 (1997).

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tribute to wrongful convictions of innocent people, a major reason isthe fabrication or intentional withholding of exculpatory evidence bythe police. 2 16 In one study, 381 homicide convictions were reversedbecause the prosecutors and police concealed evidence suggesting thatthe defendants were innocent. 2 17 Most times, the police operated in-dependently of the prosecutor, and commonly, the police failed to dis-close exculpatory evidence of which the prosecutor was not aware. 2 18

Often, the police have a natural tendency to hide exculpatory facts inan overzealous effort to obtain a conviction. 2 19 Moreover, many policeofficers feel that disclosure of exculpatory evidence is not part of theirjob.2 20 Police officers tend to believe the decision to disclose exculpa-tory evidence is a prosecutorial function, not a police function.22 1 Theproblem with such superficial reasoning is that, most often, the prose-cutor is unaware of the exculpatory facts for the simple reason thatthe police failed to disclose them.

Professor Stanley Fisher has noted that the police culture ofteninvolves lying to prosecutors about the facts of a crime and failing toreport exculpatory evidence. 222 He has studied police misconduct ex-tensively, and he has reported the police hide exculpatory evidenceand lie to protect themselves against civil liability and ensure convic-tions. 22 3 Studies show that, many times, the failure to disclose excul-patory evidence to the defendant results in a wrongful conviction. 22 4

The routine non-disclosure of exculpatory facts in police reports candevastate the lives of the accused. "Police reports can affect the crimi-nal process because, at various stages, the report, rather than the of-ficer's personal knowledge of the events reported, 'come[s] to stand for

216. See Stanley Z. Fisher, Just the Facts, Ma'am: Lying and the Omission of Excul-patory Evidence in Police Reports, 28 NEW ENG. L. REV. 1, 26-31 (1993) [hereinafterFisher, Just the Facts] (suggesting lack of training to document exculpatory evidence inpolice reports is the root cause of police withholding evidence); see also Stanley Z.Fisher, The Prosecutor's Ethical Duty to Seek Exculpatory Evidence in Police Hands:Lessons from England, 68 FORDHAM L. REV. 1379, 1413-25 (2000) (comparing withhold-ing of evidence in the American criminal justice system with that of England, wherestatute attempts to ensure access by prosecutors to exculpatory evidence gathered bypolice).

217. Ken Armstrong & Maurice Possley, Trial and Error: How Prosecutors SacrificeJustice to Win, CHI. TRIB., Jan. 10, 1999, at C1.

218. See Fisher, Just the Facts, supra note 216, at 53.219. See C. RONALD HUFF, ET AL., CONVICTED BUT INNOCENT: WRONGFUL CONVICTION

AND PUBLIC POLICY 71-72 (1996).

220. Fisher, Just the Facts, supra note 216, at 7.221. JOAN PETERSILIA, ET AL., POLICE PERFORMANCE AND CASE ATTRITION 41 (1987).222. See Fisher, Just the Facts, supra note 216, at 9-12.223. Id. at 15-17.224. JON B. GOULD, THE INNOCENCE COMMISSION: PREVENTING WRONGFUL CONVIC-

TIONS AND RESTORING THE CRIMINAL JUSTICE SYSTEM 205 (2008).

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the reality of what happened."' 22 5 Thus, if the police omit crucial ex-culpatory facts from an arrest report, all parties involved are unlikelyto find such facts because those with knowledge of the facts-the po-lice-have intentionally withheld them.

Judge Dorothy W. Nelson of the United States Court of Appealsfor the Ninth Circuit recently expressed the view that if plaintiffs areunable to sue officers who violate their rights pursuant to Brady v.Maryland,226 police misconduct will increase. 2 27 Judge Nelson statedthat precluding plaintiffs from suing the police under a Brady theoryin the absence of a criminal conviction would "create[ I perverse incen-tives for police and prosecutors who believe they will not successfullyconvict a particular criminal defendant."2 28 Judge Nelson's fear is areal one: If the police have an incentive to "suppress evidence, know-ing that the suppression would not result in a successful Brady claimand the suspect would at least be subject to a lengthy criminal trial,"innocent parties will be unjustly convicted, and lives will be ruined.2 29

Thus, it is imperative that courts afford all plaintiffs, especiallythose who are criminally innocent, with the opportunity to pursuemoney damages against police officers who intentionally withhold ex-culpatory evidence. An award of money damages has proved to be aneffective tool to deter police misconduct. 230 If police officers are onnotice that the intentional withholding of exculpatory evidence willresult in civil liability-irrespective of whether a conviction is ob-tained in the underlying criminal case-there will be a significant re-duction in the number of instances of police misconduct. Ultimately,this also will yield a decrease in wrongful convictions, as the policewill have an incentive to disclose all exculpatory and impeaching evi-dence. Thus, under a living constitutional analysis, recognizing theprevalence of police misconduct and resulting wrongful convictions re-quires our courts, and our entire society, to allow criminally innocent

225. Fisher, Just the Facts, supra note 216, at 32 (quoting Richard V. Ericson, Rulesfor Police Deviance, in ORGANIZING POLICE DEVIANCE: ITS STRUCTURE AND CONTROL 96(Clifford D. Shearing ed. 1981) (discussing police in Canada)).

226. 373 U.S. 83 (1963).227. Smith v. Almada, 640 F.3d 931, 946-48 (9th Cir. 2011) (Nelson J., dissenting).228. Almada, 640 F.3d at 948.229. Id.230. See City of Riverside v. Rivera, 477 U.S. 561, 575 (1986) ("In addition, the dam-

ages a plaintiff recovers contributes significantly to the deterrence of civil rights viola-tions in the future. This deterrent effect is particularly evident in the area of individualpolice misconduct .... ") (citation omitted); Jon 0. Newman, Suing the Lawbreakers:Proposals to Strengthen the Section 1983 Damage Remedy for Law Enforcers Miscon-duct, 87 YALE L.J. 447, 456-57 (1978) (arguing stronger damage penalties against policedepartments, as opposed to only against individual officers, will have the greatest im-pact in deterring police misconduct).

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plaintiffs to pursue Brady claims against the police officers who have"wronged" them.

V. CONCLUSION

This Article has examined the Brady v. Maryland23 1 doctrinefrom cases pre-dating the seminal decision through its progeny. Ateach step in the Brady evolution, the United States Supreme Courthas analyzed Brady in the criminal context, applying prejudicial-errorreview where the relief sought is a new trial, not money damages.However, where a plaintiff who has been denied Brady evidence doesnot seek a new trial (because of a dismissal of charges, a not guiltyverdict, or otherwise), the Supreme Court's prejudicial-error review ismisplaced. To be sure, the fact that the court did not find the plaintiffguilty in such a case is irrelevant because the injury suffered is not awrongful conviction but, rather, suffering through the ordeals of acriminal prosecution.

In our modern era, it makes little sense to deny plaintiffs-espe-cially criminally innocent ones-the right to sue the police for moneydamages under a Brady theory. These plaintiffs pay legal fees, sufferinjuries to their reputations, and live with the stigma of being chargedwith crimes. These damages are present regardless of the ultimateoutcomes of their criminal cases. Unfortunately, the federal circuitsthat have examined the issue have failed to appreciate the importanceof providing criminally innocent plaintiffs with a remedy for these in-juries. In the end, providing a civil tort lawsuit in this context willincentivize potentially rogue police officers to abide by the FourteenthAmendment and play by the rules. When officers understand thatthey may face monetary liability for violating the rules, all citizens-even the innocent-will be protected.

231. 373 U.S. 83 (1963).

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innocent have rights too: expanding brady v. maryland to

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