The Supreme Court's landmark decision in Brady v. Maryland is simultaneously one of the most important and most flawed standards protecting the constitutional due process rights of criminal defendants. The Brady decision placed an affirmative duty on the prosecution to disclose exculpatory, material evidence to the defense. Over time, however, courts have chipped away at the scope of the duty to disclose. Notably, lower courts have excused prosecutors from their duty to disclose under Brady where evidence is not within the exclusive control of the prosecution. Hence, while Brady only discussed the prosecution's duty, courts have introduced a corresponding duty on the defense to discover exculpatory evidence. While the exclusive control requirement seems logical, this Comment critically analyzes the scope, origins, and role the requirement plays in Brady jurisprudence and suggests that it is neither well grounded in the Supreme Court's decisions nor a useful doctrine for preserving the adversarial nature of the criminal justice system. This Comment concludes that a collaborative remedy needs to come from the courts, legislatures, and prosecutors' offices. Each of these institutions can undertake to modify or eliminate the exclusive control requirement in an effort to ensure the fairness of criminal trials.
