Document Type


Publication Date

Summer 2005


Brady doctrine, Strickland doctrine, Post-conviction error, Death penalty, Capital punishment, Brady v. Maryland, Strickland v. Washington, United States v. Bagley, Powell v. Alabama, Mooney v. Holohan, Gideon v. Wainwright, Kyles v. Whitley


Criminal Law | Criminal Procedure


Most commonly invoked after conviction and direct appeal, when a defendant may claim that his lawyer was ineffective or that the government failed to disclose exculpatory information, the Brady doctrine, which governs the prosecutor’s duty to disclose favorable evidence to the defense, and the Strickland doctrine, which monitors defense counsel’s duty to represent the client effectively, have developed into the principal safeguards of fair trials, fundamental to the protection of defendants’ constitutional rights and arguably defendants’ strongest insurance of a reliable verdict. But the doctrines do not sufficiently protect these core values.

The doctrines, despite their common due process heritage and symbiotic development, are generally divided when assessing prejudice. Even in cases where the defendant alleges both that the prosecution withheld evidence and that his counsel was incompetent, courts assess the impact of each party’s conduct on the verdict independently. Our objectives here are two-fold. Our more modest objective is to argue that courts should consider the impact of Brady violations and Strickland violations together when evaluating whether a guilty verdict or death sentence is reliable. Few courts and no commentators, however, have directly tackled this issue. Our second objective is more ambitious. If Strickland and Brady errors should be considered jointly when assessing prejudice, then why shouldn’t the impact of all errors that potentially affective the reliability of a verdict be taken into account?

Part I begins by tracing the history of the Strickland and Brady doctrines. Beginning with Part II we address three problems that we see as dividing reliability determinations. We next consider the relationship between the Brady and Strickland doctrines, in Part III. Our call is for integrating Strickland prejudice and Bagley materiality. Part IV expands the argument for cumulation beyond ineffective assistance of counsel and prosecutorial suppression. Our call here is for a rule of integration requiring courts to consider the unified impact on the verdict of all errors affecting reliability.

Publication Citation

Published in: Journal of Criminal Law & Criminology, vol. 95, no. 4 (Summer 2005).