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Two Models of Pre-Plea Discovery in Criminal Cases: an Empirical Comparison Jenia I

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Two Models of Pre-Plea Discovery in Criminal Cases: an Empirical Comparison Jenia I Washington and Lee Law Review Volume 73 | Issue 1 Article 7 Winter 1-1-2016 Two Models of Pre-Plea Discovery in Criminal Cases: An Empirical Comparison Jenia I. Turner SMU School of Law Allison D. Redlich George Mason University Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Criminal Law Commons Recommended Citation Jenia I. Turner and Allison D. Redlich George Mason University, Two Models of Pre-Plea Discovery in Criminal Cases: An Empirical Comparison, 73 Wash. & Lee L. Rev. 285 (2016), https://scholarlycommons.law.wlu.edu/wlulr/vol73/iss1/7 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. Two Models of Pre-Plea Discovery in Criminal Cases: An Empirical Comparison Jenia I. Turner∗ Allison D. Redlich∗∗ Abstract Our criminal justice system resolves most of its cases through plea bargains. Yet the U.S. Supreme Court has not required that any evidence, even exculpatory or impeachment evidence, be provided to the defense before a guilty plea. As a result, state rules on pre-plea discovery differ widely. While some jurisdictions follow an “open-file” model, imposing relatively broad discovery obligations on prosecutors early in the criminal process, others follow a more restrictive, “closed-file” model and allow the prosecution to avoid production of critical evidence either entirely or until very near the time of trial. Though the advantages and disadvantages of both models are debated, surprisingly little is known about the models’ real-world operation. In this Article, we report the results of an original empirical study in which we surveyed practicing prosecutors and criminal * Professor of Law, SMU Dedman School of Law. ** Professor, George Mason University, Department of Criminology, Law, and Society. The authors thank Albert Alschuler, Miriam Baer, Becky Bailey, Jeff Bellin, Stephanos Bibas, Darryl Brown, Anthony Colangelo, John Douglass, Kyle Graham, Jeff Kahn, Andy Kim, Errin Martin, Ion Meyn, Jenny Roberts, Jessica Roth, Meghan Ryan, Jessica Smith, John Turner, Shamoil Shipchandler, Alex Whiting, Ron Wright, and participants in the AALS Annual Meeting Criminal Justice Section panel, the Emory Law Faculty Colloquium, and the 2015 CrimFest conference for invaluable comments. Many others also helped us to collect and analyze the data, including Katherine Blakley, Alyssa Clark, Victoria Farrell, Donna Gaubert, Tom Kimbrough, Maria Randazzo, Jennifer Rounds, Rob Sickorez, and Charles South. We thank the Sam Taylor Fellowship and the Barbara and Michael Lynn Faculty Research Fund for financial support. 285 286 73 WASH. & LEE L. REV. 285 (2016) defense attorneys about their pre-plea discovery practices. We surveyed attorneys from Virginia and North Carolina, two adjacent states, which are demographically and geographically similar, but have notably different discovery rules. North Carolina mandates open-file discovery early in the criminal process. By contrast, Virginia protects certain critical documents, such as witness statements and police reports, from discovery. Our findings indicate that, as expected, open-file discovery can promote more informed guilty pleas. It leads to improved pre-plea disclosure of most categories of evidence. The practice is also viewed as more efficient in that it reduces discovery disputes and speeds up case dispositions. We also found little evidence that open-file discovery endangers the safety of witnesses, a common argument against the practice. Open-file discovery does not, however, appear to enhance the disclosure of certain impeachment evidence, such as the prior convictions of prosecution witnesses. Further, practitioners reported that even when the entire case file is turned over to the defense pre-plea, the file is frequently missing some information relevant to the case. The Article interprets these findings and concludes with a general endorsement of the North Carolina open-file system over the Virginia closed-file system as a better guarantor of informed decisions and efficient process in criminal cases. Table of Contents I. Introduction .....................................................................287 II. Regulating Pre-Plea Discovery in Criminal Cases .........297 A. The Constitutional Baseline ......................................297 B. Beyond the Baseline: Two Models of Discovery in Criminal Cases .....................................302 C. The Rise of the Open-File Model: Costs and Benefits ......................................................................306 III. The Practice of Pre-Plea Discovery: Comparing the Closed-File and Open-File Models ..................................313 A. The Empirical Gap ....................................................313 B. Survey Method ...........................................................316 C. Survey Findings .........................................................322 TWO MODELS OF PRE-PLEA DISCOVERY 287 1. Breadth and Frequency of Pre-Plea Discovery ..............................................................322 2. Disclosure of Exculpatory Evidence ....................329 3. Discovery Waivers ...............................................346 4. Advantages and Disadvantages of Open-File Discovery .............................................352 a. Satisfaction with Pre-Plea Discovery Practices .........................................................352 b. Advantages of Open-File Discovery ...............355 c. Disadvantages of Open-File Discovery ..........358 IV. Pre-Plea Discovery: Implications ....................................372 A. Methodological Caveats .............................................373 B. Legal and Policy Implications ...................................380 Appendix A: Pre-Plea Discovery Practices: A Survey of Prosecutors and Defense Attorneys.............386 Appendix B: Table of Select Discovery Rules by Jurisdiction .................................................................400 I. Introduction It is commonplace to observe that most criminal cases in the United States today are resolved by a plea bargain, rather than a trial.1 Yet the Supreme Court has never held that the prosecution’s evidence must be disclosed to the defendant before a guilty plea.2 1. See, e.g., Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012) (noting that plea bargaining “is not some adjunct to the criminal justice system; it is the criminal justice system” (citing Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 YALE L.J. 1909, 1912 (1992))). In some jurisdictions, criminal trials are so rare that many prosecutors practice for years without appearing before a jury. Don Stemen et al., Plea Bargaining in Wisconsin: Prosecutor Effects on Charge Reductions and Sentencing Outcomes 9 (unpublished manuscript) (on file with author). 2. United States v. Ruiz, 536 U.S. 622, 628–32 (2002). Ruiz concluded that the government is not constitutionally required to disclose impeachment evidence before a guilty plea, but it did not squarely resolve whether the government must disclose factually exculpatory evidence. Id. at 628. Circuit courts have split on this question. Compare, e.g., Orman v. Cain, 228 F.3d 616, 617 (5th Cir. 2000) (holding that a prosecutor need not disclose exculpatory evidence when a defendant waives a trial and pleads guilty), with, e.g., McCann v. Mangialardi, 337 F.3d 782, 787–88 (7th Cir. 2003) (suggesting that, if a prosecutor fails to disclose factually exculpatory evidence before a defendant 288 73 WASH. & LEE L. REV. 285 (2016) Instead, it has held only that exculpatory evidence must be disclosed sometime before trial.3 As a result, state legislatures and judicial systems have adopted their own unique regimes and practices regarding pre-plea discovery.4 Some jurisdictions follow an “open-file” model and impose relatively broad discovery obligations on prosecutors early in the criminal process.5 Others follow a more restrictive, “closed-file” model and allow the prosecution to avoid production of critical information either entirely or until very near the time of trial.6 Advocates of each of these approaches have marshaled theoretical arguments and anecdotal evidence on their behalf, but no one has tested empirically how the two models operate in practice.7 We have taken up this task by surveying prosecutors and defense attorneys from two states with opposing approaches to pre-plea discovery.8 This Article describes the findings of our enters a guilty plea, this would likely violate the Due Process Clause); see also Buffey v. Ballard, 782 S.E.2d 204, 216 (W. Va. 2015) (reviewing federal and state decisions on this question and concluding “that a defendant is constitutionally entitled to exculpatory evidence during the plea negotiation stage”). 3. See Brady v. Maryland, 373 U.S. 83, 87 (1963) (“We now hold that the suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”). 4. See infra Part II.B (discussing the criminal discovery rules used by different jurisdictions). 5. See, e.g., ARIZ. R. CRIM. P. 15.1 (requiring the prosecutor to make available to
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