Effective Assistance in Plea Negotiations

Structuring Pre-Plea Criminal Discovery

Daniel S. McConkie Jr.

Brigham Young University – J. Reuben Clark Law School
December 1, 2014

Journal of Criminal Law and Criminology, Forthcoming 

Abstract:

Ninety-seven percent of federal defendants plead guilty, and they rely on prosecutors for much of the information about the government’s case on which the decision to plead is based. Although federal prosecutors routinely turn over most necessary discovery to the defense, the law does not require them to turn over any discovery before the guilty plea.
This can lead to innocent defendants pleading guilty and to guilty defendants pleading guilty without information that could have affected the agreed-upon sentence.

This article argues that the lack of a judicially enforceable pre-plea discovery regime flouts structural protections that due process is supposed to provide. Defendants who plead not guilty and go to trial get a jury to adjudicate guilt and a judge to preside over the proceedings and pronounce sentence. The judge and jury hear an adversarial presentation of the evidence, and the judge at sentencing can consider an even broader spectrum of information about the defendant and the crime. But defendants who plead guilty effectively act as their own judge and jury. Unfortunately, because prosecutors are not required to provide any pre-plea discovery, the defendant who pleads guilty may not have nearly as much information as the judge and jury would have had at trial and sentencing.

The Supreme Court has employed a balancing test to determine whether a particular procedure comports with due process. This article proposes tailoring that test to the pre-plea discovery context. The proposed test would ask (1) whether the defense is getting sufficient information before the guilty plea to promote accurate sorting of the innocent from the guilty and reasonably informed and consistent sentencing; (2) whether there are there clear rules
that allow judges, before a guilty plea, to regulate prosecutors’ decision not to disclose; and (3) whether the production of pre-plea discovery in a given case imposes undue costs on society.

One hopeful development is that several district courts, pursuant to Congressionally-granted authority, have promulgated local rules for pre-plea discovery. Although the Constitution does not require it, I argue that Congress should adopt several of these time-tested rules to give both clear standards to prosecutors and authority to judges to enforce liberal pre-plea

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