Jennifer Mason McAward, associate professor of law at Notre Dame Law School and director of the Klau Institute for Civil and Human Rights in the Keough School of Global Affairs, recently completed the largest-ever study of criminal cases in which the government hid evidence.

She analyzed 386 rulings by state or federal courts from the past 18 years that found prosecutors had violated an important constitutional protection known as the Brady rule. Established by the Supreme Court in 1963, the Brady rule requires prosecutors to disclose any evidence favorable to a criminal defendant prior to trial if that evidence is material to the defendant’s guilt or punishment.

“The Brady rule is simple on its face,” McAward said. “Still, despite more than 60 years of practice, this well-established rule is often broken. By all accounts, we have a constitutional right that is routinely being violated.”

The study, described in a forthcoming paper in the Vanderbilt Law Review, was a monumental undertaking. But, as McAward wrote in her paper, she regards it only as the beginning of a larger effort.

McAward continued the conversation on Feb. 21 by hosting a workshop in Washington, DC, with a multidisciplinary group of scholars and practitioners intent on improving compliance with the Brady rule. The workshop was funded and organized by Notre Dame Law School and held at the Keough School Washington Office.

The workshop included sessions on empirical studies of Brady violations, ways that judges can manage discovery to increase compliance, and discussion of possible policy interventions and future lines of research.

“It was very valuable to have a group of multidisciplinary voices around the table to bring different methods and perspectives and histories to the question,” McAward said. “A lot of excellent work has gone before us, so it was an opportunity for new voices and perspectives to join that conversation that’s been going on for a long time.”

The group in Washington included several scholars whose work was cited in McAward’s paper.

Those included legal scholars Adam Gershowitz of William & Mary Law School, Daniel McConkie of Northern Illinois University College of Law, Rachel Moran of the University of St. Thomas College of Law and Jenia Turner of Southern Methodist University’s Dedman School of Law, as well as Allison Redlich of George Mason University’s Department of Criminology, Law and Society, and Jon Gould, dean of the School of Social Ecology at the University of California, Irvine.

Gershowitz said that McAward’s article “has cast a bright light on the longstanding problem of Brady violations. It was terrific to discuss her significant work as well as the important research conducted by others at the roundtable.”

McConkie said the workshop facilitated a variety of perspectives about a problem in criminal procedure that is important but often misunderstood. “Professor McAward’s Brady study grounds that discussion in hard facts,” he said.

Turner said everyone at the workshop left with a better understanding of the issues and with new ideas for future work.

“Professor McAward’s impressive analysis of hundreds of decisions on Brady violations was a great starting point for our discussions,” she said, “and all the participants brought out different and insightful perspectives on how best to regulate discovery in criminal cases.”

Bruce Green, the Louis Stein Chair at Fordham Law School, where he directs the Louis Stein Center for Law and Ethics, also attended the workshop. McAward said he is regarded as the “elder statesman” in this field.

“This was not only an opportunity to review outstanding scholarship, but also to reflect on where there is a need for further creative, empirical and interdisciplinary research and reflection on the Brady rule and the challenges it presents,” Green said. “All of us left the gathering invigorated, with a deeper understanding and with ideas about new paths to pursue.”

McAward said the ultimate goal of this project is to promote compliance with the constitutional rule of Brady. “The fact that people from different fields and different parts of the country were able to meet each other at this workshop and think about how their work might intersect with others’ interests will bear fruit over time,” she said.

Originally published by Kevin Allen at klau.nd.edu on March 04, 2025.