« Lots more notable new posts at Collateral Consequences Resource Center | Main | Madoff aides finally getting sentenced for their roles in massive Ponzi scheme »

December 9, 2014

"Structuring Pre-Plea Criminal Discovery"

The title of this post is the title of this notable new article by Daniel McConkie Jr. now available on SSRN. The piece spotlights the various links between criminal discovery rules and sentencing procedures and outcomes, and here is the 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 discovery.

December 9, 2014 at 11:27 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference "Structuring Pre-Plea Criminal Discovery":


Aren't the Rules of Conduct statutory?

Rule 3.8

(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;

Is this not sufficient to cover the concerns in the article. Again, I have stated that the sole remedies for defendants against prosecutorial misconduct reside inside the tribunal, with the judge. Disqualify. Hold in criminal contempt. Referrals to the Disciplinary Counsel will usually result in sanctions if from a judge. Sanction with fines and legal costs to the other side from the personal assets of the prosecutor. And, something I doubt has ever happened, declare the defendant innocent due to the misconduct alone, an exclusionary rule for misconduct.

Why are these tactics not professional standard of due care for defense lawyers when so clearly supported in the Rules? Because the defense bar owes its job to the prosecutor, and not to the client, duties be damned. The prosecution will be fully deterred after the very fist such sanction, and there goes the work for the defense.

Posted by: Supremacy Claus | Dec 9, 2014 7:51:17 PM

I have to give SC this one.

Posted by: rodsmith | Dec 10, 2014 5:31:22 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB