Discovery and the Prosecutor’s Ethical Obligations - with respect to the US Supreme Court’s Brady Rule -

In the adversarial system of the United States, the scope of the constitutionally-imposed duty of the prosecution to disclose to the defense any known evidence that tends to negate guilt or reduce punishment is determined by reference to the rule first enunciated by the United States Supreme Court in Brady v. Maryland. In comparison, while it is true that Korea’s criminal procedure is based on its German law roots, the Korean criminal trial is currently neither strictly inquisitorial, nor is it entirely adversarial, but rather attempts to combine the best aspects of both for a fair opportunity to ascertain the truth. As is the case in German law, Korean discovery procedures already offer the criminal defendant meaningful access to the prosecution’s dossier. A number of Korean scholars have focused on the Brady rule as a model for reform to further enhance the rights of criminal defendants against the public power of the state, while others have suggested an ethical standard that affords the criminal defendant a broader scope of protection than the Brady rule, such as is characterized by Rule 3.8(d) of the ABA Model Rules of Professional Conduct. This paper briefly reviews and compares German and Korean laws that establish the criminal defendants’ right to discovery and their prescription of the broader prosecutorial duty to investigate and disclose exculpatory evidence. It also introduces in narrative form, for a Korean audience, the background, promulgation and development of the Brady rule, and outlines some of its serious shortcomings to explain the main reasons why the Brady rule does not function to ensure the due process rights of criminal defendants. The paper concludes with a suggestion that if scholars and lawmakers decide that further reform is needed to enhance the rights of criminal defendants in Korea, a more productive focus than the Brady rule may be elaboration of the prosecution’s broader ethical obligations or an expansion of current discovery rights to more closely model German criminal procedure.