PLEA BARGAINING BLIND: HOW THE RULES OF DISCOVERY PROMOTE INJUSTICE IN CRIMINAL CONVICTIONS

Back to Page Authors: Wendy R. Calaway

Keywords: discovery, pretrial, Brady, wrongful conviction

Abstract: Most criminal cases are resolved by way of plea bargain, essentially negating the value of the right to a trial by jury. The rise of the plea bargain as the predominant method of resolving criminal cases requires a robust discovery process whereby the defendant is fully informed of the evidence against him or her. However, the practice of prosecutors has been to restrict pretrial access to information, essentially requiring criminal defendants to negotiate blind. The trend in court decisions interpreting the rules of discovery and constitutional obligations of disclosure has been to ignore the realities of the importance of access to information at the pretrial stage. This paper examines recent court decisions on pretrial access to information in criminal cases and calls on courts to look more carefully at the role of plea bargaining in the resolution of criminal cases.