The media’s portrayal of the criminal legal system in the United States, conjures up visions of impassioned closing arguments to an attentive jury box, and justice doled out by the peers of the accused. However, according to the Bureau of Justice Statistics it is estimated that 90 to 95 percent of all criminal legal cases are resolved through the plea bargaining process.
This distinction, between the formal trial process and the informal plea bargaining process, even creeps over to the law. The Brady doctrine, as created in Brady v. Maryland, holds that the Due Process Clause of the US Constitution requires prosecutors to disclose, before trial, evidence that may exculpate defendants or mitigate their sentences. The Supreme Court later extended this requirement to witness impeachment evidence in Giglio v. United States. The Brady framework for discovery grew out of these promises to ensure that fair and accurate outcomes resulted in criminal cases by compelling prosecutors to consider weaknesses in their case, and alerting defense attorneys of evidence in the defendant’s favor.
However, the Brady protections are not as all encompassing as they appear. First, the Brady rules provide a remedy for discovery violations only where the withheld evidence is material to the outcome - as in - the result would have been different if the evidence had been presented. This is extremely difficult to prove in practice as jury results are unpredictable and marred by a lack of public information concerning the decision making process that was undertaken in the jury room. Next, most evidence is collected by local law enforcement, so targeting prosecutors with the Brady rules does not necessarily ensure that all exculpatory evidence even reaches the prosecution file. The Supreme Court attempted to ameliorate these concerns in Kyles v. Whitley, by mandating that prosecutors have “a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including police . . . .” However, prosecutors do not have any real direct supervisory authority over law enforcement and therefore cannot reliably ensure that all exculpatory evidence reaches their attention.
Finally, Brady does not, and ultimately cannot, ensure that prosecutors always recognize exculpatory evidence as such. This can happen for any number of reasons, including cognitive biases, or as Alafair Burke put it, “the well documented tendency to favor evidence that confirms one’s working hypothesis.” As well as a lack of prosecutorial resources. As Adam Gershowitz and Laura Killinger note in their article, “when prosecutors carry excessive caseloads, they handle them in triage fashion . . . if evidence is lurking in a case file that will ultimately lead to a defendant’s case being dismissed, it will linger there until the prosecutor has time to focus on the matter.”
Perhaps the biggest problem with Brady as a shield to protect criminal defendants is that according to the Supreme Court, the evidence must be disclosed “before trial,” but as noted above, 90 to 95 percent of cases do not reach the trial stage. In fact, the Supreme Court has
expressly held that prosecutors do not need to turn over impeachment evidence before a guilty plea because the duty to disclose impeachment evidence protects the fairness of trial and not the criminal proceedings more generally. This turns the Brady protections from robust protections designed to ensure the legal criminal process is occuring fairly, into protections that really only afford shelter to 5 to 10 percent of all criminal defendants.
So Brady does an incomplete job as a constitutional baseline and in the gap that this “before trial” language creates, the states have stepped up to fill the void. There is considerable variation among the states, with some states mandating very early disclosure of Brady evidence and others allowing it to occur at the last minutes before trial. For example, six states have enacted some form of broad open-file discovery attempting to confront this problem head on. For example, in North Carolina, the State is to “make available to the defendant the complete files of all law enforcement agencies, investigatory agencies, and prosecutors' offices involved in the investigation of the crimes committed or the prosecution of the defendant.” The files must include, “any other matter or evidence obtained during the investigation of the offenses alleged to have been committed by the defendant.” The defense can request the file early in the process, which is “no later than 10 days after the probable cause hearing,” and may petition the court for enforcement if no response has been given within seven days.
Likewise, a New Jersey law mandates pre-indictment disclosure if a plea deal is offered, and the disclosure must include, “names, addresses, and birthdates of any persons whom the prosecutor knows to have relevant evidence or information including a designation by the prosecutor as to which of those persons may be called as witnesses.” Other states with such broad open file policies include Alaska, Florida, and Minnesota. In contrast, Oklahoma requires that “[d]isclosure must occur ten (10) days prior to trial,” and the only witnesses that need to be disclosed are the ones who are to be called at the trial itself. These protections leave out the vital period before trial when a Defendant is considering a plea deal.
The extra time period with access to the evidence that is provided in states such as North Carolina and New Jersey, is key for informed decision making when deciding whether to plead. Generally, in order for a guilty plea to be considered valid, it must be entered into knowingly, intelligently, voluntarily, and with a factual basis of guilt. Defendants’ limited access to discovery information certainly raises questions about the validity of uninformed pleas. It is argued that in order to have a truly informed plea agreement, the defendant must be able to “assess knowledgeably the likelihood of conviction at trial,” which is an impossibility without the full scope of the evidence available.
In order to test the efficacy and effect of open file discovery, George Mason University conducted an experiment with college participants acting as criminal defendants who were allowed to accept or reject a certain plea deal. The experimental group were given instructions
that “you will be reading all of the evidence the prosecution has on you,” to simulate an open-file condition while the control group was given the instructions: “it’s likely you will not read all of the evidence that the prosecution has on you,” simulating a closed file jurisdiction. Each participant was further told whether they in fact committed the crime accused or remained factually innocent.
The results show that “participants in the open-file conditions were . . . more likely to state that discovery information impacted their plea decisions.” Importantly, “[t]his finding was especially true of innocent participants in [an] open-file condition,” meaning that access to discovery information works to dissuade those who are factually innocent from accepting plea deals for crimes they did not commit. Although there was no “direct effect of the amount of discovery information on plea decisions, we did find indirect effects that lend support to the argument that access to discovery information is important to making informed plea decisions.” These indirect effects operate through “significant mediating variables, such as witness interview impact and strength of the evidence.”
Another survey, conducted in North Carolina and Virginia, attempted to show the perceived differences between open and closed file systems on the attorneys on the ground. The survey found that “statutorily mandated open-file discovery results in broader disclosure of almost all types of evidence.” Further, North Carolina Defense Attorneys reported “they received all three categories of exculpatory and impeachment evidence more frequently than their Virginia counterparts.” Showing that, at least as much as the defense attorneys on the ground perceive it, open-file rules effectively extend the effects of Brady and its progeny to the pre-trial plea negotiation process.
Open-file discovery would give Oklahomans a chance to fully understand the weight of the evidence, allowing them to effectively enter into informed plea agreements, and give those who are factually innocent an incentive to continue to fight to prove their innocence. Oklahoma currently resides in a middle ground, where they have adopted the American Bar Association’s discovery recommendations, but have not rushed to fill the holes left by Brady, and extend discovery obligations to include pre-plea discovery and witnesses who are not directly testifying at trial. In order to ensure that the 90 to 95% of criminal defendants who resolve their case through a plea agreement have adequate information on the evidence against them, Oklahoma must work to fill these gaps. Open-file discovery is one method to accomplish this.