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The Brady Rule May Hurt the Innocent

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  • Nuno Garoupa
  • Matteo Rizzolli

Abstract

Mandatory disclosure of evidence (the so-called Brady rule) is considered to be among the most important bulwarks against prosecutorial misconduct. While protecting the generality of defendants in the criminal process, we show that under certain reasonable assumptions this procedural mechanism may hurt innocent defendants by inducing prosecutors to adjust their behavior to their detriment. The main rationale for our thesis is that, if forced to reveal exculpatory information, the prosecutor might not look for that information in the first place, and in turn this could harm the innocent under certain reasonable conditions. We extensively discuss our results in the context of the economic literature on criminal procedure. Copyright 2011, Oxford University Press.

Suggested Citation

  • Nuno Garoupa & Matteo Rizzolli, 2011. "The Brady Rule May Hurt the Innocent," American Law and Economics Review, American Law and Economics Association, vol. 13(1), pages 168-200.
    • Handle: RePEc:oup:amlawe:v:13:y:2011:i:1:p:168-200
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    File URL: http://hdl.handle.net/10.1093/aler/ahq018
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    Cited by:

    1. Marie Obidzinski & Yves Oytana, 2020. "Presumption of Innocence and Deterrence," Journal of Institutional and Theoretical Economics (JITE), Mohr Siebeck, Tübingen, vol. 176(2), pages 377-412.
    2. Andrew F. Daughety & Jennifer F. Reinganum, 2017. "Information suppression by teams and violations of the Brady rule," Vanderbilt University Department of Economics Working Papers 17-00001, Vanderbilt University Department of Economics.
    3. Echazu, Luciana & Garoupa, Nuno, 2012. "Why not adopt a loser-pays-all rule in criminal litigation?," International Review of Law and Economics, Elsevier, vol. 32(2), pages 233-241.
    4. Chulyoung Kim, 2014. "Adversarial and Inquisitorial Procedures with Information Acquisition," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 30(4), pages 767-803.

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