Publication Date
2-10-2023
Abstract
Plea bargains dispose of over 97% of criminal matters in the United States’ criminal justice system. Proponents of plea bargaining typically justify the practice under the “shadow of trial” theory, claiming that plea bargains reflect predicted trial outcomes minus a discount for the prosecutorial resources saved. But scholars challenge this theory because other factors influence whether a defendant will enter a plea bargain. Among many are attorney competence, workloads, and legal resources. Yet a largely overlooked gap is that state ethics rules undermine the theory responsible for the legitimacy of plea bargaining. Each state has enacted a similar variation of Model Rule 3.8(d), which requires prosecutors to “timely disclose” evidence that tends to negate guilt. American Bar Association guidance on the meaning of the rule is advisory—not binding—which has led to a situation where states interpret prosecutorial disclosure obligations differently. If the date of trial is not close, some states do not require prosecutors to disclose evidence before defendants accept or deny plea offers. But the actual practices of prosecutors and defenders indicate different results of when disclosure occurs and how they understand the law. Qualitative data collected from interviews in nineteen states reveal that prosecutors and defenders disagree on what disclosure obligations exist and whether nondisclosure problems occur in the first place. Given these findings, defendants may enter plea bargains unaware of the prosecution’s evidence. To align ethics rules with the dominant theory used to justify plea bargaining, this Article suggests that states should require prosecutors to disclose exculpatory evidence before plea negotiations conclude. Even then, if current disclosure rules were to apply before defendants plead guilty, their scope does not reach far enough. Ethics rules remain silent on the prosecutorial obligation to disclose evidence that proves guilt of the accused. A defendant cannot meaningfully bargain if withheld exculpatory or inculpatory evidence leads to a false estimate of conviction. Instead, professional conduct codes can make defenders, prosecutors, and the public share a common understanding of disclosure responsibilities. States can hold prosecutors personally accountable and the accused can better predict trial outcomes when ethical disclosure rules factor into the shadow of trial.
First Page
3
Recommended Citation
Anthony R. Guttman, Pleading for Pre-Bargain Disclosure in State Legal Ethics, 100 DENV. L. REV. 3 (2022).