Structuring pre-plea criminal discovery.

• Author: Mcconkie, Daniel S.

Ninety-seven percent of federal defendants plead guilty, (1) 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 generally 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 clear rules that allow judges, before a guilty plea, to regulate prosecutors' decisions 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. I argue that these time-tested local rule innovations should be incorporated into the Federal Rules of Criminal Procedure, to give clear standards to prosecutors and authority to judges to enforce expansive pre-plea discovery.

INTRODUCTION 3 I. THE UNCHECKED POWER OF PROSECUTORS TO DENY PRE-PLEA DISCOVERY 8 A. Plea Bargaining Prosecutors Have Too Much Discretion to Withhold Discovery 8 B. Why Defendants Need Broad Pre-Plea Discovery 12 1. Exculpatory Evidence 12 2. Inculpatory Evidence 13 C. Structural Criteria for Criminal Procedure: Checking the Executive by Providing Information To Article III Decision-Makers 19 1. Constraining Prosecutorial Discretion 20 2. Informing Article HI Decision-Makers 22 II. A STRUCTURAL ANALYSIS OF THE SUPREME COURT'S CRIMINAL DISCOVERY JURISPRUDENCE 25 A. Separation of Powers and Due Process 26 B. The Brady Rule 27 C. Other Right To Information Cases Arising Under Due Process 31 1. Executive Duty to Preserve Evidence for Fact-Finder's Benefit--California v. Trombetta 31 2. Right to "Raw Materials Integral to the Building of an Effective Defense"--Ake v. Oklahoma 32 3. Right to Information "Relevant and Helpful to the Defense"--Roviaro v. United States 33 D. Right to Information Cases Not Arising 34 Out of Due Process 1. Compulsory Process for the Effective Functioning of the Courts and United States v. Nixon 34 2. Other Potential Constitutional Sources of Discovery Rights 37 III. ADAPTING DUE PROCESS TO PRE-PLEA DISCOVERY 39 A. Due Process Evolving 39 B. The Rigid Due Process of United States v. Ruiz 42 C. A Due Process Balancing Test Adapted to Pre-Plea Discovery 46 1. Promoting Accuracy in Adjudication 47 2. Informed Sentencing and Unwarranted Disparities 49 3. Pre-Trial Judicial Enforcement of Discovery Rules 51 4. Not Imposing Undue Costs on Society 51 5. Whether the Supreme Court Should Adopt This Proposed Test 52 IV. INNOVATIVE DISTRICT COURT RULES REQUIRING BROAD PRE-PLEA DISCOVERY 53 A. Local Rules 54 1. How Criminal Procedural Rules Are Made 54 2. Significant Innovations in Local Rules Related to Pre-Plea Discovery 55 B. Standing Orders And Case-Specific Discovery Orders 60 C. Recommendations 62 CONCLUSION 63 INTRODUCTION

Consider the unusual case of a federal criminal defendant who is tried by a jury. That defendant has constitutional and statutory rights to discovery, which are necessary for him to prepare a defense. The jury adjudicates guilt based on an adversarial presentation of evidence presided over by a neutral judge. If the jury convicts, the judge can consider an even broader quantity of information to determine a just sentence.

Now, consider the more typical defendant who pleads guilty. Instead of extended proceedings before a judge and jury, that defendant adjudicates his own case by declaring himself guilty. He also agrees to his own sentence, or at least to its principal terms. No jury hears the evidence, and the plea agreement may leave little or no room for the judge to exercise much sentencing discretion. In effect, that defendant acts as his own judge and jury. Another key feature of the guilty plea is that the defendant may plead guilty with much less information than the judge and jury had in the trial scenario. True, federal prosecutors routinely provide pre-plea discovery as they see fit, but federal defendants have no statutory or constitutional rights defining the appropriate scope of such disclosures.

In the trial example, a conviction requires structural protections consistent with separation of powers principles. First, there needs to be a concurrence of the tri-partite branches: the prosecutor (executive) brings charges according to the law (passed by the legislature), and the pre-trial proceedings, trial, and sentencing are presided over by a judge. Next, the jury serves as a non-governmental check on the power of the state to deprive its citizens--consistent with due process--of life, liberty, or property. In contrast, in the guilty plea example, there is no trial jury, and the judge may do little more than accept the guilty plea and pronounce sentence according to the terms of the plea agreement. The prosecutor is the dominant player, choosing her charges and her defendants and leveraging guilty pleas with the threat of a trial penalty (the differential between the sentence offered as part of the plea deal and the sentence imposed after trial).

Another key difference between the two examples is the flow of information to the decision-maker. In the trial example, the defendant has statutory and constitutional rights to pre-trial discovery. He can seek judicial enforcement of his statutory rights at any stage in the case, although his constitutional discovery rights are generally only enforceable after the trial. But in the guilty plea example, the defendant has no such rights. He pleads guilty based on his own independent knowledge of the case and the information that the prosecution, in its sole discretion, chooses to provide.

This flow of information is critical to the proper disposition of criminal cases. Innocent defendants need evidence in the prosecution's possession that tends to demonstrate their innocence. Without that information, they may plead guilty to cut their losses. Even guilty defendants need information from the prosecution to rationally plea bargain and to be sentenced consistently with other cases. For example, a drug trafficker's sentence depends in large part on the quantity of drugs trafficked. But without access to lab reports, the trafficker may not be aware of the quantity and purity involved. Likewise, members of a large fraud ring may not even know of each other's existence, but evidence that inculpates one defendant may exculpate another. These two examples illustrate how inculpatory evidence is relevant not only to guilt, but also to sentencing. Because plea deals routinely decide both the charges of conviction and the sentencing consequences, even guilty defendants need enough information about the government's evidence against them to make an informed decision about whether to waive their constitutional rights. And if prosecutorial discretion is not regulated by consistent, enforceable rules for pre-plea discovery, similarly situated defendants may strike different plea bargains based solely on differing amounts of criminal discovery that they happen to receive from the prosecutor assigned to the case.

There is a strong connection between the justice system's structural protections and the flow of information from the prosecution necessary for proper adjudication and sentencing. As a practical matter, prosecutors generally have access to the entire contents of the criminal investigation and the case against the defendant. Congress and the Supreme Court have formulated discovery rules for a trial-based procedure. Judges have enforced these rules, thereby greatly increasing the flow of information to the defense, benefitting defendants (especially innocent ones) and society. In contrast, for the vast majority of defendants who plead guilty, federal prosecutors give up only as much pre-plea discovery as they feel is appropriate, according to agency policies, ethical rules, and their own individual discretion. They have no statutory or constitutional obligation before a guilty plea to turn over discovery that helps the defendant ("exculpatory evidence"), although the Department of Justice generally requires prosecutors to turn over exculpatory evidence (but not evidence that could impeach a government witness) before a guilty plea. They routinely turn over enough evidence that hurts the defendant ("inculpatory evidence") to incentivize the guilty plea, but prosecutors may not recognize when evidence could help the defendant, and without any real possibility that a judge will force them to hand over certain...