Note: Hold Fast the Keys to the Kingdom: Federal Administrative Agencies and the Need for Brady Disclosure

By Justin Goetz. Full text here.

Due process protections for defendants vary greatly between the numerous federal agencies vested with civil enforcement powers. Many of these agencies fail to provide defendants with basic safeguards, including the protections available in the Federal Rules of Criminal Procedure. As federal administrative agencies continue to increase both the scope of their enforcement authority and the penalties they assess, such due process deficiencies become even more apparent. This state of affairs is surprising considering the U.S. Supreme Court’s ruling in Brady v. Maryland, in which it held that the Fifth Amendment binds government prosecutors with a duty to disclose material, exculpatory evidence to a defendant. This duty derives from the Court’s axiom that a government prosecutor must seek justice, not victory, in the courtroom—an axiom that logically extends to civil enforcement actions.

To rectify this due process deficiency, the Note argues that the Brady precedent should apply to all federal administrative agencies’ formal adjudications. The few federal agencies that have adopted the Brady rule for this purpose have employed it successfully and can serve as a model for other federal agencies. Additionally, defendants facing these agencies receive due process protections that are more comparable with Article III civil and criminal defendants than those defendants before agencies that reject Brady.