The Milke Way: Milke v. Ryan and the Vast Galaxy of Uncharted Exculpatory Evidence it Revealed

Persons charged with crimes usually want to know about evidence that could help their cases. Since 1963, when the Supreme Court handed down its decision in Brady v. Maryland, this desire has been recognized as something more: a due process right to all material exculpatory evidence in the prosecuting agency’s hands. Like most seemingly simple rights, the right to Brady evidence has been examined and reexamined by the courts, resulting in the complicated behemoth known as Brady doctrine. This Note seeks to add to that complexity. By interpreting the Ninth Circuit’s decision in Milke v. Ryan, this Note highlights a particular type of Brady evidence that prosecutors very rarely disclose: prior constitutional violations by law enforcement witnesses. In Milke, this type of evidence was one of three groups of undisclosed evidence that led to the reversal of a capital murder conviction. Though a close reading of the Ninth Circuit’s opinion makes clear that this evidence must be disclosed in certain cases, Milke’s mandate is not fulfilled in every case. This Note proposes a solution: a step-by-step method for large prosecution agencies to search for past constitutional violations by repeat law enforcement witnesses. By finding and recording this information, prosecutors can then disclose the evidence in cases where it is pertinent, fulfilling the demands of due process and Brady in an efficient, systematic way.