Waiving prosecutorial disclosure in the guilty plea process: a debate on the merits of "discovery" waivers.

• Author: Franklin, Erica G.

Some U.S. Attorneys' have added to their plea bargain contracts a waiver of the defendant's right to additional discovery, which may include evidence impeaching the credibility of witnesses. Consequently, many prosecutors in these districts neither review the files of key witnesses nor disclose any impeaching evidence to defense counsel after signing a plea agreement. Erica Franklin finds that these waivers raise several concerns. First, the waivers force defense attorneys into a difficult position--advising their clients to sign the plea agreement minimizes the possibility that significant exculpatory or impeaching evidence will appear. Second, the waivers may violate a defendant's constitutional right to receive from the prosecutor all material evidence bearing on his guilt or innocence as articulated in Brady v. Maryland. In examining the impact of the waivers on defense counsel and on defendants' Brady rights, Franklin concludes that if a waiver raises a Brady issue, courts are unlikely to enforce it. From a policy standpoint, however, Franklin finds the waivers objectionable, even where no Brady issue exists, since they not only undermine the fairness and accuracy of the criminal justice system but also produce no significant benefit. In addition to removing the waivers from plea agreements, Franklin proposes requiring prosecutors to discover and disclose favorable information to the defense at the time of the plea.

Recently, a new dilemma has vexed some federal public defenders. To illustrate briefly, imagine that you are a federal public defender. You have a client charged with several bank robberies for which he faces a maximum of sixty years in prison.(1) The Assistant U.S. Attorney has just offered your client a terrific plea agreement that would allow him to serve only eight years. The prosecutor insists that, pursuant to Brady v. Maryland,(2) she has given you every piece of "material" evidence that reflects on your client's factual guilt or innocence.(3) She has disclosed that several witnesses have identified your client as the bank robber, but nothing else. Your client wants to take the plea deal. Lacking an effective defense, you want your client to sign the agreement as well.

Looking over the agreement, you notice the following provision, which you have never seen before:

The defendant understands that discovery may not have been completed in this case, and that there may be additional discovery to which he would have access if he elected to proceed to thai. The defendant agrees to waive his right to receive this additional discovery which may include, among other things, evidence tending to impeach the credibility of potential witnesses.(4) The prosecutor says that, as a result of this waiver, she has not examined the personnel files of key law enforcement witnesses in the case against your client. Nor has she disclosed to you any key witnesses' criminal and personal histories or any inconsistent statements that they may have made to prosecutors, all of which might impeach their credibility. You would receive this information if you went to trial. Then comes the tough choice: Do you urge your client to sign the plea agreement, taking the chance that significant impeaching evidence does not exist and that, if it did, it would not be crucial to developing your defense?

This is the problem that federal public defenders face after the U.S. Attorney's office in the Northern District of California recently inserted these waiver provisions in their plea agreements. The two sides are at a stalemate.(5) The Federal Public Defender's office has refused to sign any agreements with this language, arguing that it amounts to a waiver of a defendant's Brady rights.(6) Assistant U.S. Attorneys insist that the waiver does not affect their continuing Brady obligation to disclose to the defense information in their possession bearing on the defendant's guilt or punishment.(7) Prosecutors say that the waiver simply acknowledges that a plea usually happens prior to the start of a trial, and that the prosecutor has no obligation before trial to turn over evidence concerning the credibility of witnesses, as opposed to the guilt or innocence of the accused.(8) The U.S. Attorney's office in the Southern District of California has instituted even more explicit waivers. Those agreements state that the prosecutor has a continuing obligation to give the defense only information establishing the defendant's "factual innocence."(9) The agreements further provide that the defendant both waives his right to impeaching information that he otherwise would obtain if he went to trial, and agrees not to collaterally attack the plea agreement.(10)

The debate over whether the new language amounts to a defendant's waiver of his Brady rights reaches two issues at the foundation of the criminal justice system: the fairness and accuracy of the plea bargaining process and the types of values that the system should uphold. On one side, many prosecutors want tight controls on their Brady obligation during plea bargaining. They fear that a recent Ninth Circuit case, Sanchez v. United States,(11) opens the door to defense attorneys who seek to overturn their clients' plea agreements on the basis of impeaching evidence they are not owed under Brady.(12) Prosecutors make two other arguments in support of the waivers. First, if a defendant is willing to plead guilty, he must be guilty.(13) At the plea stage, revealing weaknesses in the government's case through disclosure of impeachment evidence simply advances "gamesmanship" without serving "truth." Second, plea-bargaining is inherently risky and often done in a world without perfect information.(14) For the certainty of a shorter sentence, a defendant relinquishes his chance of acquittal.

On the other side, many defense attorneys distrust the commitment of prosecutors to turning over material information favorable to the defense. They argue that, under current Supreme Court jurisprudence, prosecutors may fail their Brady obligations if they withhold information that impeaches key government witnesses.(15) The waiver could hurt the defendant's chances of invalidating the plea if he later learns that the prosecutor withheld information that met Brady requirements. Moreover, some withheld information may be relevant to the defense attorney's ability to argue for lesser sentences after the plea is signed.(16) At least, discovery waivers may harm defendants by eliminating any obligation on prosecutors to search their files for information favorable to the defense.(17)

This article assesses arguments on both sides of the debate using recent court opinions imposing Brady obligations on prosecutors. Part I discusses a prosecutor's disclosure obligations under Brady and how Sanchez and other recent cases expand that obligation to the plea context. Part II examines the effect of the new waiver language on prosecutors' Brady obligations. The article concludes that although some impeaching information that prosecutors withhold or do not discover as a result of plea bargain waivers might constitute Brady material,(18) courts are unlikely to enforce such waivers when a Brady issue arises. Part III addresses the ethical and policy implications of the waiver. It argues that a prosecutor's disclosure of crucial impeachment information enhances fairness and accuracy in the criminal process. The waiver impedes these goals and does not serve any other valuable purpose. Thus, prosecutors should not include the waivers in their plea agreements. Part IV advocates placing a broad, affirmative duty on prosecutors at the time of the plea to discover and disclose any favorable evidence to the defense that might affect a defendant's decision whether or not to plead guilty.

1. BRADY AND DISCLOSURE OBLIGATIONS AT THE PLEA STAGE

   1. The Supreme Court's Brady Obligation

      Any discussion of a prosecutor's Brady obligation should start with the pivotal language from that case: "[T]he suppression by the prosecution of evidence favorable to an 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."(19) The Court defined favorable evidence as evidence tending to exculpate the defendant or to reduce his penalty.(20)

      The Court's interpretation of these factors, however, has changed. Generally, the Court has expanded the scope of the prosecutor's Brady obligation. First, in United States v. Bagley,(21) the Court disavowed any distinction between impeachment evidence and exculpatory evidence for Brady purposes.(22) The Bagley Court concluded that the government failed to meet its Brady obligation by not disclosing contracts the principal witnesses had signed with law enforcement officers.(23) Likewise, in Giglio v. United States,(24) the Court found that a prosecutor's no-prosecution-for-testimony deal with a key witness was Brady information subject to disclosure.(25) In addition, the Court no longer requires a specific request by the defense to trigger a prosecutor's Brady obligation.(26)

      Furthermore, prosecutors need not know that Brady material exists to be held responsible for failure to disclose it. The Court has indicated that prosecutors constructively possess Brady material in the hands of other government actors, and that they must seek out this evidence.(27) In Giglio, the Court said that the trial prosecutor constructively possessed Brady material in the hands of other prosecutors in the office.(28) In Pennsylvania v. Ritchie,(29) the Court recognized that Brady might require a prosecutor to examine files held by other government agencies to discover if they contained material evidence favorable to the defendant.(30) The Supreme Court's most recent Brady case, Kyles v. Whitley,(31) extended the doctrine of constructive possession to the police.(32) The Kyles Court held that the "prosecutor has...