In a scathing dissent, Chief Judge Kozinski of the Ninth Circuit Court of Appeals decries what he calls an “epidemic of Brady violations” on the part of federal prosecutions. “There is an epidemic of Brady  violations abroad in the land. Only judges can put a stop to it.” The landmark Brady case, Brady v. Maryland, 373 U.S. 83 (1963), holds that a prosecutor violates due process when he (1) suppresses evidence (2) that is favorable to the defendant when that evidence (3) is material to guilt or innocence. (Id. at 87.)

In essence, it is a constitutional violation for prosecutors to not disclose evidence favorable to the defense if there is a reasonable probability the evidence might lead to a different outcome. Unfortunately, Brady  violations have become all too common. Kozinski writes: “I wish I could say that the prosecutor's unprofessionalism here is the exception, that his propensity for shortcuts and indifference to his ethical and legal responsibilities is a rare blemish and source of embarrassment to an otherwise diligent and scrupulous corps of attorneys staffing prosecutors' offices across the country. But it wouldn't be true. Brady violations have reached epidemic proportions in recent years . . .”