The Fallacy of the "New Originalism"

Lynne Henderson hendersl at ix.netcom.com
Sat Sep 2 17:21:21 PDT 2006


what is "experimental" about discovery/disclosure?  *Brady * doesn't 
require a one-way ratchet, so states  and feds remain free to require  
defense disclosure of alibi, insanity, diminished capity, etc. defenses 
while requiring the prosecution to disclose all of its evidence.  And 
even then the defense has to   "request" it to trigger *Brady.*
Lynne Henderson
On Sep 2, 2006, at 1:20 PM, Earl Maltz wrote:

> Brady stifles innovation by preventing the federal and state 
> governments from experimenting with other systems for dealing with the 
> issue of disclosure.
>
> At 12:23 PM 9/2/2006 -0700, you wrote:
>> why does *Brady* "stifle innovation?"
>> Lynne Henderson
>> On Sep 2, 2006, at 11:19 AM, Earl Maltz wrote:
>>
>>> 1.  First, the question of whether the due process clause "stifles 
>>> innovation" does not depend upon the question of whether one adopts 
>>> a fixed 



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