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In Brady v. Maryland, the Supreme Court first recognized that a defendant’s due process rights are violated when a prosecutor fails to disclose material exculpatory evidence, evidence tending to show that a defendant is not guilty of a crime or punishment. The Brady Court found that criminal defendants have a constitutional right to the disclosure of such evidence because “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Since its adoption in 1963, the Court has modified the “Brady Rule” several times. In its current construction, the Brady Rule places a constitutional duty on prosecutors and law enforcement agencies and officers to affirmatively disclose exculpatory evidence in the possession of the government, i.e., Brady material.

While the Brady Rule furthers the Constitution’s guarantees of due process and right to a fair trial, the rule has one major limitation—the Brady Rule only applies in criminal cases. It’s time for that to change.

The Brady Court’s premise that “[s]ociety wins not only when the guilty are convicted but when criminal trials are fair” is no less true when stated that “[s]ociety wins not only when the guilty are [found liable] but when [civil] trials are fair.” The constitutional guarantees recognized by the Brady Court do not disappear because the process occurs in a criminal versus civil context.

Moreover, as the Administrative State has grown, so too has use of civil enforcement by Executive Branch agencies. Civil enforcement actions can be just as coercive and abusive as criminal processes, particularly considering agencies’ appetite to seek record judgments and fines. As Justice Gorsuch recently noted, “[o]urs is a world filled with more and more civil laws bearing more and more extravagant punishments. … Some of these penalties are routinely imposed and are routinely graver than those associated with misdemeanor crimes—and often harsher than the punishment for felonies.” In the era of multi-million, and even billion, dollar enforcement judgments, forfeiture provisions, and lifetime bars on an individual’s ability to practice their chosen profession, the distinction between the consequences of criminal versus civil enforcement actions collapses.

Admittedly, some courts have found to the contrary and disallowed the Brady Rule in civil enforcement cases. In those instances, the courts have mistakenly relied on the Federal Rules of Civil Procedure’s broad discovery provisions to defeat the Brady Rule. But as the Supreme Court noted in U.S. v. Bagley, the Brady rule is one of disclosure, not one of discovery. This point is further highlighted by the fact that the Brady Rule places an obligation on prosecutors to affirmatively disclose Brady materials regardless of whether a defendant requests such evidence. Additionally, because the Brady Rule applies to law enforcement broadly, and not just prosecutors themselves, prosecutors are required to look for exculpatory evidence in the possession of law enforcement. Without that obligation, civil enforcement attorneys may well never discover the exculpatory evidence in the first place.

On adopting the Brady Rule, Executive Branch agencies have a mixed record. Only the U.S. Department of Transportation has adopted a final rule that wholly incorporates the Brady Rule. Some agencies, like the Federal Trade Commission and Federal Communications Commission, have rejected using the Brady Rule altogether. Other agencies, like the Federal Energy Regulatory Commission, have adopted official policies that implement the Brady Rule, but as policies, lack permanent and binding effect. Several agencies have voluntarily adopted variations of the Brady Rule in their civil enforcement actions. However, even in agencies that have adopted Brady-like rules and policies, they often fall short of the Brady Rule’s constitutional guarantees.

The U.S. Securities and Exchange Commission (SEC) provides a good example of the repercussions of agency reluctance to adopt the Brady Rule because the SEC applies a variant of the Brady Rule in its administrative proceedings before the Commission. The SEC is charged with enforcing federal securities laws. In carrying out its enforcement obligations, the SEC may bring a civil enforcement action in federal court or administrative proceedings before an administrative law judge. The SEC can also conduct joint investigations and enforcement with the Department of Justice. Under this scheme, an individual who violates federal securities laws is entitled to varying degrees of disclosure of Brady material by the government based on where the violation is litigated.

For example, let’s say that an individual has violated federal securities laws in a way that permits criminal or civil enforcement, and the government possesses material exculpatory evidence about that individual and their actions. If the individual is facing criminal charges for the violation, the Department of Justice is required to affirmatively disclose Brady material under the Rule. If the individual is facing civil allegations in federal court for the violation, the SEC is not required to affirmatively disclose Brady material. But if the individual is facing civil allegations in an SEC administrative proceeding for the violation, then, under its Rules of Practice, the SEC cannot withhold Brady material. But the SEC is not required to make an affirmative disclosure of such evidence either. The SEC is only required to make party documents available for copying and inspection—a cost paid by the defendant.

The due process owed to a defendant in civil enforcement actions should be guided by Brady and its progeny. It should not be subjected to the whims of Executive Branch agency enforcement staff. There is a clear need for a uniform rule requiring affirmative disclosure of material exculpatory evidence in civil enforcement actions because such a rule is necessary to safeguard due process. Agencies would do well to recognize the Brady Rule in their civil enforcement actions. Agencies that conduct civil enforcement actions should promulgate a rule adopting the Brady Rule, furthering the government’s interest that justice be done and ensuring additional protections for individuals subject to administrative enforcement actions.