On November 8, 2025, Dr Justice Srem-Sai, the Deputy Attorney-General of the Republic of Ghana, posted a “NEW LAW ALERT” on Facebook. He noted that a prosecutor is required, before a trial commences, to file disclosures to facilitate the defence of the accused person.
He added that, “[b]ecause the prosecutor cannot be trusted to voluntarily file every evidence (especially the one that he knows can show that the accused person is not guilty), the law allows the accused person to ask the court to direct the prosecutor to make further disclosures.”
Dr Srem-Sai emphasized that, prior to October 29, 2025, the law and practice in Ghana required an accused person to meet two requirements for such disclosures: (i) relevance and (ii) possession. He concluded that the Supreme Court has removed the relevance requirement, leaving only the possession rule still standing.
The foregoing throws the Brady Doctrine (Brady v Maryland, 373 U.S. 83 (1963) into sharp focus. Brady and Boblit were convicted and sentenced to death for the murder of Brooks. Brady admitted his involvement in the stealing of the victim’s car ahead of a planned bank robbery.
He claimed that it was Boblit who had carried out the actual killing of the victim. During the trial(s) of the two accused persons (held separately), the prosecution kept Boblit’s written confession that he had committed the killing all by himself, away from Brady.
Their conviction(s) were affirmed by the Court of Appeals of Maryland (known since 2022 as the Supreme Court of Maryland).
The Supreme Court of the United States granted certiorari (cert.) and held that prosecutors must turn over all material exculpatory evidence to the defence. This includes two types of evidence: (i) evidence that tends to show that the defendant is not guilty of the crimes charged, and (ii) evidence that would enable the defence to impeach the credibility of prosecution witnesses.
Material evidence refers to disclosure that could change the outcome of the case. To the Court, withholding evidence amounts to a violation of the defendant’s constitutional right to due process “where the evidence is material either to guilt or to punishment.”
Brady material includes inconclusive laboratory reports, witness descriptions that do not match the defendant, cooperation agreements with the defendant, and other forms of evidence within the control of “the government” including the police.
However, if the defendant pleads guilty after negotiations, the prosecution is not required to disclose the Brady information.
In the United States, many states and District Attorney’s offices have “an open file policy allowing
the defense to see the information.”
Apart from the Brady Doctrine, there are 3 additional prosecutorial duties –
(i) not to knowingly present false testimony,
(ii) not to violate the defendant’s Sixth Amendment right to counsel by contacting or directing others to contact the defendant outside the presence of her counsel and
(iii) not to make unfair comments about the defendant to the jury or comment on the failure of the defendant to testify at the trial in violation of her Fifth Amendment right to remain silent. However, prosecutors can comment on a defendant’s silence before her Miranda rights attach.
Robert Nii Arday Clegg
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