Plea bargaining, discovery, and the intractable problem of impeachment disclosures

Vanderbilt Law Review

Volumn 64, Issue 5, 2011, Pages 1429-1487

  Michael Cassidy, R ^a  

^a BOSTON COLLEGE   (United States)

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EID: 82055195232     PISSN: 00422533     EISSN: None     Source Type: Journal    
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References (312)

1. United States v. Stevens, No. 08-cr-231 (EGS), 2009 WL 6525926 (D. D. C. Apr. 7, 2009) (order setting aside verdict);
2. Jeffrey Toobin, Casualties of Justice, NEW YORKER, Jan. 3, 2011, at 39.
3. Cone v. Bell, 129 S. Ct. 1769, 1786 (2009).
4. United States v. W. R. Grace Co., CR 05-07-M-DWM (D. Mont. 2009). The jury instructions are summarized at http://www.insidecounsel.com/Issues/2009/ July-2009/Pages/Fiery-Jury-Instructions.aspx.
5. In response to another disclosure violation in a high-profile federal organized crime prosecution, then-Chief District Judge for the District of Massachusetts, Mark Wolf, initiated disciplinary proceedings against a prosecutor in his own court, having documented several prior instances of Brady violations in the District from which he concluded that the Department of Justice was either unable or unwilling to police prosecutors who violated their discovery obligations. See In re Auerhahn, 650 F. Supp. 2d 107 (D. Mass. 2009);
6. Shelley Murphy, Three Judge Panel Urged to Suspend Lawyer, BOS. GLOBE, Dec. 12, 2010, at 1. Subsequently, a panel of three District Court judges declined to impose discipline.
7. *13 (D. Mass. Sept. 15, 2011) (concluding that bar counsel failed to make out a violation of attorney conduct rules by the AUSA by clear and convincing evidence in organized crime prosecution; although prosecutor "fail[ed] to document more carefully" inconsistent statements that cooperating witness had made to him and investigators during debriefing and trial preparations sessions, and took "too casual an approach" to his discovery obligations, bar counsel had failed to prove "actual knowledge" by prosecutor of exculpatory evidence).
8. United States v. Bagley, 473 U. S. 667, 682 (1985).
9. See Bruce A. Green, Beyond Training Prosecutors About Their Disclosure Obligations: Can Prosecutors' Offices Learn from Their Lawyers' Mistakes?, 31 CARDOZO L. REV. 2161, 2179 (2010).
10. See Kyles v. Whitley, 514 U. S. 419, 437 (1995) (construing Brady v. Maryland to require prosecutors to "learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police").
11. Erica G. Franklin, Waiving Prosecutorial Disclosure in the Guilty Plea Process: A Debate on the Merits of "Discovery" Waivers, 51 STAN. L. REV. 567, 568 (1999).
12. See Roger C. Cramton & Lisa K. Udell, State Ethics Rules and Federal Prosecutors: The Controversies over the Anti-Contact and Subpoena Rules, 53 U. PITT. L. REV. 291, 315-16 (1992);
13. Rory Little, Who Should Regulate the Ethics of Federal Prosecutors?, 65 FORDHAM L. REV. 355, 359-67 (1996).
14. Bagley, 473 U. S. at 682.
15. United States v. Ruiz, 536 U. S. 622, 633 (2002).
16. ABA Comm. on Ethics & Prof'l Responsibility, Formal Op. 54 (2009).
17. 536 U. S. 622 (2002).
18. Peter A. Joy & Kevin C. McMunigal, ABA Explains Prosecutors' Ethical Disclosure Duty, 24 CRIM. JUST. 41, 44 (2010);
19. Kevin C. McMunigal, Disclosure and Accuracy in the Guilty Plea Process, 40 HASTINGS L. J. 957, 1025-26 (1989).
20. Ellen Yaroshefsky, Ethics and Plea Bargaining-What's Discovery Got to Do With It?, 23 CRIM. JUST. 28, 28 (2008).
21. 373 U. S. 83, 87 (1963).
22. Id. at 86 (quoting Mooney v. Holohan, 294 U. S. 103, 112 (1935)).
23. Id. at 87-88. Although the Court's decision in Brady referenced the prosecutor's constitutional duty to turn over exculpatory evidence "on request" of the defendant, subsequent cases recognized that this constitutional duty of disclosure exists whether the defendant specifically requests the withheld material, only generally requests exculpatory information, or files no discovery requests at all. United States v. Bagley, 473 U. S. 667, 682 (1985) (plurality opinion). In other words, the prosecutor's duty to turn over evidence favorable to the accused is self-executing; it does not depend on the presence or precision of discovery requests filed by defense counsel. See id.
24. 373 U. S. at 87.
25. Giglio v. United States, 405 U. S. 150, 154-55 (1972).
26. See United States v. Ruiz, 536 U. S. 622, 628 (2002) (citing Giglio for the proposition that exculpatory evidence includes "evidence affecting witness credibility") (internal quotation marks omitted);
27. Strickler v. Greene, 527 U. S. 263, 263 (1999) (requiring disclosure when evidence is favorable to the accused, "either because it is exculpatory, or because it is impeaching").
28. Bagley, 473 U. S. at 676 (rejecting any constitutional distinction between impeaching information and exculpatory evidence).
29. When the "reliability of a given witness may well be determinative of guilt or innocence", nondisclosure of evidence "affecting [that witness's] credibility" falls within the constitutional disclosure rule announced in Brady. Id. at 677 (quoting Giglio, 405 U. S. at 154).
30. Brady v. Maryland, 373 U. S. 83, 87 (1963).
31. Kyles v. Whitley, 514 U. S. 418, 437 (1995).
32. Whether an investigating agent will be considered to be a member of the "prosecution team" for Brady/Giglio purposes is a fact-specific inquiry. See United States v. Meros, 866 F.2d 1304, 1309 (11th Cir. 1989). Not all government investigators will be considered agents of the prosecutor, if, for example, they work for a different sovereign or are not participating in the case under investigation.
33. See, e.g., United States v. Reyeros, 537 F.3d 270, 283 (3d Cir. 2008);
34. United States v. Risha, 445 F.3d 298, 306 (3d Cir. 2006);
35. United States v. Antone, 603 F.2d 566, 567-68 (5th Cir. 1979).
36. See Strickler v. Greene, 527 U. S. 263, 280-81 (1999)
37. (quoting Kyles, 514 U. S. at 438).
38. See Giglio, 405 U. S. at 154;
39. Brady, 373 U. S. at 87.
40. See Wood v. Bartholomew, 516 U. S. 1, 11 (1995) (ruling that undisclosed results of polygraph examinations on government witnesses did not require reversal where polygraph evidence was inadmissible under state law and defendant's claim that knowledge of results could have led to admissible evidence or altered cross-examination was based on mere speculation). There is no uniform approach in the federal courts to the treatment of inadmissible "information" as the basis for Brady claims.
41. See generally Felder v. Johnson, 180 F.3d 206, 212 & n. 7 (5th Cir. 1999) (discussing different approaches taken by circuits and collecting cases). Some circuits and state supreme courts have ruled that if the withheld evidence was inadmissible, then it cannot be material under Brady.
42. See, e.g., United States v. Wilson, 605 F.3d 985, 1005 (D. C. Cir. 2010)
43. cert. denied, 10-7456, 2010 WL 4604820 (U. S. Dec. 13, 2010);
44. Hoke v. Netherland, 92 F.3d 1350, 1356 n. 3 (4th Cir. 1996);
45. Commonwealth v. Lambert, 884 A.2d 848, 857 (Pa. 2005). Other circuits allow that inadmissible evidence can sometimes be material under Brady, if it could have led to the discovery of admissible evidence.
46. See, e.g., Ellsworth v. Warden, N. H. State Prison, 333 F.3d 1, 5 (1st Cir. 2003);
47. Wright v. Hopper, 169 F.3d 695, 703 & n. 1 (11th Cir. 1999).
48. United States v. Bagley, 1473 U. S. 667, 682 (1985). In Bagley, the Court adopted a uniform standard of materiality to be applied to all instances of undisclosed exculpatory evidence, irrespective of whether the evidence withheld was specifically requested by the defendant, only generally requested, or not requested at all. Id.
49. Kyles v. Whitley, 514 U. S. 419, 435 (1995).
50. See Bennet L. Gershman, Reflections on Brady v. Maryland, 47 S. TEX. L. REV. 685 (2006);
51. Mary Prosser, Reforming Criminal Discovery: Why Old Objections Must Yield to New Realities, 2006 WIS. L. REV. 541, 564;
52. Scott E. Sundby, Fallen Superheroes and Constitutional Mirages: The Tale of Brady v. Maryland, 33 MCGEORGE L. REV. 643, 659 (2002).
53. See Daniel S. Medwed, Brady's Bunch of Flaws, 67 WASH. & LEE L. REV. 1533, 1542 (2010).
54. John G. Douglass, Fatal Attraction? The Uneasy Courtship of Brady and Plea Bargaining, 50 EMORY L. J. 437, 516 (2001).
55. Strickler v. Greene, 527 U. S. 263, 281 (1999);
56. see United States v. Coppa, 267 F.3d 132, 135 (2d Cir. 2001)
57. (quoting United States v. Bagley, 473 U. S. 667, 675 (1985)).
58. See generally Alafair S. Burke, Revisiting Prosecutorial Disclosure, 84 IND. L. J. 481, 487 (2009).
59. See Jennifer Blasser et al., New Perspectives on Brady and Other Disclosure Obligations: Report on the Working Group of Best Practices, 31 CARDOZO L. REV. 1961, 1963 (2010) ("The boundaries of the Brady decisions are uncertain and contested; because of the 'materiality' requirement they are not capable of being easily or mechanically applied....");
60. See generally Bagley, 473 U. S. at 699-703 (Marshall, J., dissenting) (arguing that materiality standard is unworkable and prosecutor should be constitutionally required to disclose all evidence favorable to the defendant).
61. See, e.g., ANGELA J. DAVIS, ARBITRARY JUSTICE: THE POWER OF THE AMERICAN PROSECUTOR 4, 130-32 (Oxford Univ. Press 2007);
62. See, e.g., Alafair S. Burke, Talking About Prosecutors, 31 CARDOZO L. REV. 2119, 2135 (2010);
63. See United States v. Giglio, 405 U. S. 150, 153-54 (1972).
64. See United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998)
65. (citing Giglio, 6405 U. S. at 154-55;
66. Napue v. Illinois, 360 U. S. 264, 269 (1959)).
67. See, e.g., United States v. Hanna, 55 F.3d 1456, 1459 (9th Cir. 1995);
68. Goins v. Commonwealth, 470 S. E.2d 114, 124 (Va. 1996).
69. See, e.g., United States v. Kelly, 35 F.3d 929, 936 (4th Cir. 1994).
70. See, e.g., Berry v. Oswalt, 143 F.3d 1127, 1132 (8th Cir. 1998).
71. See, e.g., Tassin v. Cain, 517 F.3d 770, 778 (5th Cir. 2008);
72. Bell v. Bell, 512 F.3d 223, 244 (6th Cir. 2008).
73. See, e.g., Giles v. Maryland, 386 U. S. 66, 78-79 (1981) (vacating and remanding because undisclosed police report revealed victim had previously said only two of three defendants raped her);
74. Ferrara v. United States, 456 F.3d 278, 291-92 (1st Cir. 2006) (affirming vacation of plea and sentence in organized crime prosecution where government failed to turn over recantation by key witness of claim that defendant had given him permission to kill one victim). As I will argue below, the greater includes the lesser: where evidence is both factually exculpatory and impeaching, it is perfectly appropriate to treat it as exculpatory for purposes of Rule 3.8 (d) and pertinent rules of criminal procedure, and to require its disclosure prior to a guilty plea absent waiver. My argument in this paper addresses only evidence that is purely impeaching.
75. Kyles v. Whitley, 514 U. S. 419, 439 (1995).
76. See United States v. Madori, 419 F.3d 159, 169-70 (2d Cir. 2005) (majority concludes that testifying codefendant's undisclosed cooperation with the government in another investigation was not material in the context of entire case);
77. Wilson v. Whitley, 28 F.3d 433, 439-42, 443 (5th Cir. 1994) (reversing grant of habeas corpus petition in state armed robbery prosecution where state failed to disclose police interview report with victim describing circumstances of attack and direction from which robbers approached; majority terms it a "close" and "extremely difficult" question of materiality, but ultimately concludes that defendant was not deprived of a fair trial; dissent concludes the report was material because it affected sole identifying witness's opportunity to view his assailants);
78. *8 (9th Cir. Nov. 29, 1988) (affirming denial of habeas corpus petition in state first degree murder prosecution where prosecutor failed to turn over statement which would have enabled defense to locate impeachment witness who could have testified to drinking with critical eyewitness earlier on day of murder; dissent argues that impeachment on basis of inebriation could have undermined testimony "fundamental to the prosecution's case");
79. Garrison v. Maggio, 540 F.2d 1271, 1274 (5th Cir. 1976) (undisclosed supplemental police report revealed inconsistent statement by robbery victim about height and build of perpetrator; dissent argues it was material and could have created reasonable doubt);
80. State v. Curtis, 384 So. 2d 396, 398-99 (La. 1980) (failure of sole eyewitness to shooting to identify defendant from earlier photo array was materially impeaching of in-court identification; dissent disagrees based on strength of other evidence in the case);
81. State v. Carter, 449 A.2d 1280, 1306 (N. J. 1982) (Clifford, J., dissenting on issue of whether inconsistency between polygraph examiner's oral report and written report was material);
82. Hartman v. State, 896 S. W.2d 94, 102, 112-13 (Tenn. 1995) (majority concludes that evidence prisoner was paid $1000 to convince other inmate to testify against defendant not material within meaning of Brady, but dissent argues that fact that witness refused to speak with or provide any information to the state until after payment was made to a third person was "seriously damaging to his credibility and highly material");
83. see also Strickler v. Greene, 527 U. S. 263, 301 (1999) (Souter, J., dissenting) (dissenting on materiality of officer's undisclosed notes of interview with key witness: "Even keeping in mind these caveats about the appropriate level of materiality, applying the standard to the facts of this case does not give the Court easy answers, as the Court candidly acknowledges.").
84. Kyles, 514 U. S. at 437.
85. See also Robert P. Mosteller, The Special Threat of Informants to the Innocent Who are not Innocents: Producing "First Drafts", Recording Incentives, and Taking a Fresh Look at the Evidence, 6 OHIO ST. J. CRIMV. L. 519, 565-70 (2009) (recommending legislation that would require law enforcement officers to preserve all first drafts of informant interviews).
86. Cone v. Bell, 129 S. Ct. 1769, 1783 n. 15 (2009).
87. See United States v. Ruiz, 536 U. S. 622, 629 (2002);
88. United States v. Beckford, 962 F. Supp. 780, 785 (E. D. Va. 1997)
89. (quoting United States v. Anderson, 481 F.2d 685, 690 n. 2 (4th Cir. 1973)
90. aff'd, 417 U. S. 211 (1974)).
91. The Supreme Court in Strickler cited as justification for the exculpatory evidence obligation "the special role played by the American prosecutor in the search for truth in criminal trials." 527 U. S. at 281 (emphasis added). The language invoked by the Court in Kyles, Bagley, and Agurs discussing the evidence's likely impact on the trial proceedings also suggests that Brady material must be disclosed prior to trial, or at least early enough during the trial for the defendant to make effective use of it at that proceeding.
92. See Kyles, 514 U. S. at 434;
93. United States v. Agurs, 427 U. S. 97, 108 (1986);
94. United States v. Bagley, 473 U. S. 667, 675 (1985).
95. Some circuits have confronted this timing issue in explicating the relationship between Brady and the Jencks Act, which is codified at 18 U. S. C. § 3500 (b) and requires federal prosecutors to turn over a witness's statements after that witness has testified on direct examination. A potential conflict between the Jencks Act and Brady arises where a written, recorded or adopted statement of a witness contains exculpatory information, such as impeachment material or evidence suggesting factual innocence. Some circuits have ruled that where evidence is both Brady and Jencks material, disclosure after the witness has testified on direct examination pursuant to Jencks meets the timeliness requirement of Brady.
96. See, e.g., United States v. Presser, 844 F.2d 1275, 1283 (6th Cir. 1988);
97. United States v. Jones, 612 F.2d 453, 455 (9th Cir. 1980);
98. United States v. Scott, 524 F.2d 465, 467 (5th Cir. 1975).
99. See, e.g., United States v. Rittweger, 524 F.3d 171, 181 n. 4 (2d Cir. 2008);
100. United States v. Starusko, 729 F.2d 256, 263 (3d Cir. 1984);
101. United States v. Pollack, 534 F.2d 964, 974 (D. C. Cir. 1976).
102. See United States v. Buendo, 701 F. Supp. 937, 939-40 (D. Mass. 1988)
103. aff'd sub nom. United States v. Penta, 923 F.2d 839 (1st Cir. 1990) (distinguishing classic exculpatory evidence from impeachment evidence).
104. Ruiz, 536 U. S. at 633. It is important to recognize the unique procedural context in which Ruiz arose, because the Court addressed the Brady doctrine's application to guilty pleas in a case that presented that issue only indirectly.
105. Kevin C. McMunigal, Guilty Pleas, Brady Disclosure, and Wrongful Convictions, 57 CASE W. RES. L. REV. 651, 663-64 (2007).
106. In response to a large volume of narcotics trafficking arrests in the southwestern part of the United States, several United States Attorneys' Offices in the 1990s developed a so-called "fast track" plea system whereby defendants waived their right to indictment, their right to file pretrial motions, their right to certain discovery, and their right to contest deportation proceedings in exchange for sentencing concessions. Ruiz was offered such a fast-track agreement upon her arrest for transporting thirty kilograms of marijuana into the United States, but she rejected it. She later pleaded guilty and was sentenced to a longer period of incarceration than she would have been under the proposed fast track plea agreement (18 to 24 months as opposed to 12 to 18 months). Following her conviction, Ruiz claimed that the conditions of the fast track plea agreement were unconstitutional because they required her to forego her rights to Brady material, and that she should have been provided the two-level downward departure recommended by the government in the proposed fast-track plea agreement. The Ninth Circuit Court of Appeals agreed, ruling that a guilty plea cannot be considered knowing and voluntary if it is made without knowledge of Brady material withheld by the prosecutor, and that the Constitution therefore prohibits a waiver of the sort proposed by the government in United States v. Ruiz. 241 F.3d 1157, 1164 (9th Cir. 2001). The Supreme Court could have resolved the case by assuming without deciding that all forms of Brady material must be turned over prior to a guilty plea, and resting its decision simply on the ground that such a constitutional right, like others, could be waived by the defendant. But the Court did not limit its opinion to the consideration of waivability. Instead, Justice Breyer's opinion addressed the disclosure obligation directly, and held that under Brady defendants have no constitutional right to disclosure of information relevant to either impeachment or affirmative defenses prior to a guilty plea.
107. Ruiz, 536 U. S. at 633. Evidence supporting factual innocence was not waived or alleged to have been withheld in Ruiz, so the Court did not address whether a waiver of this most substantial form of exculpatory evidence was enforceable, or whether a plea of guilty in the face of its nondisclosure could later be vacated. See id. at 631.
108. See Weatherford v. Bursey, 429 U. S. 545, 559 (1997).
109. Ruiz, 536 U. S. at 629, 633.
110. Whether the Supreme Court will develop any future theory to require preplea disclosures of evidence bearing on factual innocence remains to be seen. It has certainly left open the possibility of ruling that Brady is merely a trial right and does not apply at all to the plea bargaining context. Some circuits since Ruiz have ruled that Brady is a trial right and that even evidence that supports factual innocence need not be disclosed prior to a change of plea, reminiscent of Justice Thomas's concurrence in Ruiz. See, e.g., United States v. Conroy, 567 F.3d 174, 179 (5th Cir. 2009)
111. cert. denied, 130 S. Ct. 1502 (2010);
112. see also United States v. Mathur, 624 F.3d 498, 507 (1st Cir. 2010) (dictum);
113. United States v. Moussauoui, 3591 F.3d 263, 285 (4th Cir. 2010) (dictum).
114. Some federal courts after Ruiz have allowed defendants to challenge the voluntariness of their guilty pleas based on the failure of the government to disclose evidence supporting factual innocence. See Ferrara v. United States, 456 F.3d 278, 294 (1st Cir. 2006) (explaining that failure to disclose evidence may be sufficiently outrageous to constitute the conduct that is needed to ground a challenge to the validity of a guilty plea);
115. United States v. Lestrick, 82 F. App'x 4, 6 (10th Cir. 2003) (unpublished opinion) ("[U]nder certain limited circumstances, the prosecution's violation of Brady can render a defendant's plea involuntary.")
116. (quoting United States v. Wright, 43 F.3d 491, 496 (10th Cir. 1994)).
117. See Barry Tarlow, Brady/Giglio Disclosures: Beware of Prosecutors Bearing Gifts, 30 CHAMPION 60, 70 (2006).
118. Rule 16 of the Federal Rules of Criminal Procedure, as presently written, does not mention exculpatory evidence. FED. R. CRIM. P. 16. Indeed, the primary focus of the Rule is on disclosure to the accused of inculpatory evidence intended to be relied on by the government at trial and thus "material to preparing the defense" of the accused. See id. Specific evidence mandated for disclosure by the government upon the request of the defendant under Rule 16 includes written or recorded statements of the defendant; the substance of oral statements of the defendant made to government agents upon interrogation; the defendant's prior criminal record; documents, objects and tangible things the government intends to use at trial in its case in chief, reports of physical examinations and scientific tests; and, a written summary of expected expert testimony. Id. Unlike discovery rules in many states, Rule 16 does not require federal prosecutors to turn over a witness list prior to trial. Id. Congress has required the government to disclose its list of witnesses before trial only in capital cases.
119. See 18 U. S. C. § 3432 (2006).
120. American College of Trial Lawyers, Proposed Codification of Disclosure of Favorable Information Under Federal Rules of Criminal Procedure 11 and 16, 41 AM. CRIM. L. REV. 93, 95 (2004).
121. See Stephen Spivack, David Roth & Daniel Golden, Troubling the Heavens: The Production of Evidence Favorable to Defendants by the United States, 30 CHAMPION 24 (2010).
122. LAUREL HOOPER & SHELIA THORPE, FED. JUDICIAL CTR., BRADY V. MARYLAND MATERIAL IN THE UNITED STATES DISTRICT COURTS 23 (May 2007), available at http://www.fjc.gov/public/pdf.nsf/lookup/bradyma2.pdf/$file/bradyma2. pdf.
123. Ellen S. Podgor, Pleading Blindly, 80 MISS. L. J. 1633 (2011).
124. SUMMARY OF THE JUDICIAL CONFERENCE COMMITTEE ON RULES OF PRACTICE AND PROCEDURE 29-30 (Sept. 2007), available at http://www.uscourts.gov/uscourts/ RulesAndPolicies/rules/Reports/ST09-2007.pdf. The Standing Committee deferred further consideration of the proposed amendment in part based on its desire "to obtain information about the experience with the Department of Justice's recent revisions to its U. S. Attorneys' Manual." Id. at 29.
125. See also U. S. ATT'YS' MAN. § 9-5.001 (F) ("This expanded disclosure policy, however, does not create a general right of discovery in criminal cases. Nor does it provide defendants with any additional rights or remedies."), available at http://www.justice.gov/usao/eousa/foia-reading- room/usam/title9/5mcrm.htm.
126. U. S. ATT'YS' MAN., supra note 81, § 9-5.001 (C) (3).
127. Cone v. Bell, 129 S. Ct. 1769, 1783 n. 15 (2009).
128. Letter from Hon. Emmet G. Sullivan to Hon. Richard C. Tallman, Chair, Judicial Conference Advisory Comm. on the Rules of Criminal Procedure (Apr. 28, 2009), available at http://lawprofessors.typepad.com/files/exhibit-b-judge- sullivan-letter.pdf.
129. Joe Palazzolo, Justice Department Opposes Expanded Brady Rule, MAIN JUSTICE (Oct. 15, 2009, 12:43 AM), http://www.mainjustice.com/2009/10/15/ justice-department-opposes-expanded-brady-rule/.
130. See United States v. Jones, 620 F. Supp. 2d 163, 171 (D. Mass. 2009) (describing "ardent and successful" efforts by Department of Justice to defeat proposed amendments to Rule 16).
131. The "Ogden Memo" is actually a series of three memoranda issued by Deputy Attorney General Ogden on the same day: a "Summary" of actions taken in response to the report of the working group, a "Directive" to all United States Attorneys and Heads of Department Litigating Components Handling Criminal Matters, and a "Memorandum for Department Prosecutors." See Memorandum from David W. Ogden, Deputy Att'y Gen., to Dep't Prosecutors (Jan. 4, 2010) [hereinafter Summary of Actions Memo] (regarding "Issuance of Guidance and Summary of Actions Taken in Response to the Report of the [DOJ] Criminal Discovery and Case Management Working Group"), available at http://www.justice.gov/dag/dag-memo.pdf;
132. Memorandum from David W. Ogden, Deputy Att'y Gen., to Heads of Dep't Litigating Components and all U. S. Att'ys (Jan. 4, 2010) (regarding "Requirement for Office Discovery Policies in Criminal Matters"), available at http://www.justice.gov/dag/dag-to-usas-component-heads.pdf;
133. Memorandum from David W. Ogden, Deputy Att'y Gen., to Dep't Prosecutors (Jan. 4, 2010) [hereinafter Main Memo] (regarding "Guidance for Prosecutors Regarding Criminal Discovery"), available at http://www.justice.gov/dag/ discovery-guidance.pdf.
134. ADVISORY COMM. ON CRIMINAL RULES, AGENDA BOOK, APR. 11-12, 2001 MEETING, available at http://www.uscourts.gov/uscourts/RulesandPolicies/rules/Agenda %20Books/Criminal/CR2011-04.pdf. [hereinafter "AGENDA BOOK"].
135. Letter from Lanny Breuer to Hon. Richard Tallman (Mar. 18, 2011), in AGENDA BOOK, supra note 106, tab III. C, at 5.
136. David Markus, When Liberty is at Risk, Fair Disclosure Required, DAILY BUS. REV., May 2, 2011, www.dailybusinessreview.com/PubarticleDBR.jsp?id= 1202492322147&hbxlogin=1#.
137. Mike Scarcella, Divided on Discovery, NAT'L L. J., Mar. 14, 2011.
138. Norman L. Reimer, Federal Discovery Reform: DOJ's Baby Steps are Inadequate, 34 CHAMPION 7, 8 (2010) ("Considering that the Ogden memoranda are unlikely to produce tangible change, the defense bar should look beyond the narrow contours of Brady and pursue the ethics route to obtain discovery.").
139. Niki Kuckes, The State of Rule 3.8: Prosecutorial Ethics Reform Since Ethics 2000, 22 GEO. J. LEGAL ETHICS 427 (2009). A chart showing states that have adopted the Model Rules may be found at http://www.abanet.org/cpr/mrpc/ alpha-states.html.
140. Rule 3.8 (d) provides that a prosecutor in a criminal case shall "make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal." MODEL RULES OF PROF'L CONDUCT R. 3. 8 (d) (1983).
141. See Cone v. Bell, 129 S. Ct. 1769, 1783 n. 15 (2009) ("Although the Due Process Clause of the Fourteenth Amendment, as interpreted by Brady, only mandates the disclosure of material evidence, the obligation to disclose evidence favorable to the defense may arise more broadly under a prosecutor's ethical or statutory obligations.")
142. (citing Kyles v. Whitley, 514 U. S. 419, 437 (1995) ("[T]he rule in Bagley... requires less of the prosecution than the ABA Standards for Criminal Justice, which call generally for prosecutorial disclosures of any evidence tending to exculpate or mitigate.")).
143. ABA CANONS OF PROF'L ETHICS, Canon 5, available at http://www. americanbar.org/content/dam/aba/migrated/cpr/mrpc/Canons-Ethics.authcheckdam. pdf (emphasis added) (noting that the Preamble and Canons 1 through 32 were first adopted August 27, 1908).
144. See MODEL CODE OF PROF'L RESPONSIBILITY DR 7-103 (B).
145. (citing Olavi Maru, ANN. CODE OF PROF'L RESPONSIBILITY 330 (Am. B. Found. 1979) ("[A] disparity exists between the prosecutor's disclosure duty as a matter of law and the prosecutor's duty as a matter of ethics.")).
146. United States v. Agurs, 427 U. S. 97 (1976).
147. (citing Agurs, 427 U. S. 97).
148. Agurs, 427 U. S. at 107, 113. Nine years after Agurs, the Court in Bagley determined that the defendant bears the burden of proving that undisclosed evidence was material, irrespective of whether the undisclosed evidence was subject to a specific request, only a general request, or not request at all.
149. United States v. Bagley, 473 U. S. 667, 682 (1985).
150. See Barbara Allen Babcock, Fair Play: Evidence Favorable to an Accused and Effective Assistance of Counsel, 34 STAN. L. REV. 1133, 1153 (1982).
151. Distinguishing Agurs, the ABA in 1979 added a comment to DR 7-103 (B) stating that the ethical rule does not impose "a restrictive view" of materiality. ABA MODEL CODE OF PROF'L RESPONSIBILITY, DR 7-103 (B) cmt. (1980) (emphasis added). Imposing a less restrictive view of materiality than set forth in the Agurs decision is something quite different than imposing no materiality standard whatsoever.
152. Brady v. Maryland, 373 U. S. 83, 87 (1963) ("We now hold that the 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....") (emphasis added).
153. Brady, 373 U. S. at 87. See discussion supra note 30 and accompanying text.
154. See MODEL RULES OF PROF'L CONDUCT R. 1.7 (1983).
155. See MODEL RULES OF PROF'L CONDUCT R. 1. 6 (a) (1983).
156. Cf. MODEL RULES OF PROF'L CONDUCT R. 3. 8 (c) (1983) ("Prosecutor in a criminal case shall... not seek to obtain from an unrepresented accused a waiver of important pretrial rights.").
157. MODEL RULES OF PROF'L CONDUCT R. 3. 8 (d) (1983).
158. See FED. R. CRIM. P. 11 (c) (2) (requiring parties to disclose any existing plea agreement when defendant offers a change of plea);
159. FED. R. CRIM. P. 11 (c) (3) - (5) (circumstances under which court may accept or reject agreement).
160. Kyles v. Whitley, 514 U. S. 419, 437 (1995).
161. MODEL RULES OF PROF'L CONDUCT R. 3. 8 (d) (1983).
162. (citing Office of Disciplinary Counsel v. Wrenn, 790 N. E.2d 1195, 1198 (Ohio 2003) (prosecutor failed to disclose at pretrial hearing results of DNA tests in child sexual abuse case that were favorable to defendant and fact that that victim had changed his story);
163. In re Grant, 541 S. E.2d 540, 540 (S. C. 2001) (prosecutor failed to fully disclose exculpatory material and impeachment evidence regarding statements given by state's key witness in murder prosecution)).
164. Joan C. Rogers, In Its Final Look at Full Set of Updates, California Bar Endorses Last Seven Rules, 26 LAWYERS' MAN. PROF'L CONDUCT 619, 620 (2010). In light of California prosecutors' fierce opposition to the language and reasoning of ABA Ethics Opinion 09-454, the Committee decided to forego the highly general "timely disclosure of evidence or information that tends to negate guilt" language of ABA Model Rule 3.8 (d) and replace it with the more specific and narrower requirement that prosecutors comply with "all constitutional obligations, as interpreted by relevant case law." Id. at 621. In February 2010, the Ohio Supreme Court rejected arguments that state disciplinary rule 7-103 imposes an ethical obligation on prosecutors to disclose impeachment information before a guilty plea, without explicitly referencing ABA Formal Opinion 09-454.
165. See Disciplinary Counsel v. Kellogg-Martin, 923 N. E.2d 125, 130 (Ohio 2010) (findingdisciplinary obligation no more extensive than legal obligation). Prior to the release of ABA Formal Opinion 09-454, two jurisdictions had already interpreted their disciplinary rules to contain a materiality element, contrary to the ABA Ethics Committee's analysis.
166. See In re Attorney C, 47 P.3d 1167, 1167, 1173 (Colo. 2002) (en banc) (requiring both materiality and intentional failure to disclose for violation of Colo. Rules Prof'l Conduct 3.8 (d), and defining the requisite intent as "conscious objective or purpose to accomplish a particular result");
167. see also D. C. RULES PROF'L CONDUCT R. 3. 8 cmt. 1 ("[Rule 3.8] is not intended either to restrict or to expand the obligations of prosecutors derived from the United States Constitution, federal or District of Columbia statutes, and court rules of procedure.").
168. Irwin H. Schwartz, Beyond Brady: Using Model Rule 3.8 (d) in Federal Court for Discovery of Exculpatory Information, 34 Champion 34, 35 (2010);
169. *7 (W. D. Wash. Apr. 9, 2010);
170. United States v. Kott, No. 07-00056 (D. Alaska Oct. 23, 2009).
171. See Richard A. Rosen, Disciplinary Sanctions Against Prosecutors for Brady Violations, A Paper Tiger, 65 N. C. L. Rev. 693, 731 (1987);
172. Fred C. Zacharias, The Professional Discipline of Prosecutors, 79 N. C. L. REV. 721, 744-45 (2001) (a survey of 100 bar discipline complaints against prosecutors found very few sanctions for failure to disclose exculpatory evidence; and when discipline was imposed this misconduct was usually coupled with other infractions such as presenting false evidence or lying to the court);
173. see also Bruce A. Green & Fred C. Zacharias, Regulating Federal Prosecutors Ethics, 55 VAND. L. REV. 381, 398 (2002) ("[D]isciplinary authorities do not appear particularly eager to bring actions against prosecutors except in situations involving unambiguously wrongful conduct.").
174. See Kathleen M. Ridolfi & Maurice Possley, PREVENTABLE ERROR: A REPORT ON PROSECUTORIAL MISCONDUCT IN CALIFORNIA 1997-2009, at 54 (Oct. 2010), available at http://law.scu.edu/ncip/file/ProsecutorialMisconduct-BookEntire- online%20version.pdf. This statistic suggests that the staff of bar disciplinary agencies may not have sufficient experience with criminal matters to handle complex issues involving the materiality of impeachment information.
175. See Peter Joy, The Relationship Between Prosecutorial Misconduct and Wrongful Convictions, 2006 WIS. L. REV. 399, 427;
176. Ellen Yaroshefsky, Wrongful Convictions: It is Time to Take Prosecution Discipline Seriously, 8 UDC/DCSL L. REV. 275, 292-93 (2004).
177. Ellen Yaroshefsky & Bruce A. Green, Prosecutors' Ethics in Context: Influences on Prosecutorial Disclosure (forthcoming 2011) (manuscript at 6) (on file with author);
178. Janet C. Hoeffel, Prosecutorial Discretion at the Core: The Good Prosecutor Meets Brady, 109 PENN. ST. L. REV. 1133, 1146 (2005) (suggesting that "the prudent prosecutor is unconcerned about an ethical violation.... [H]e has never heard of a prosecutor being disciplined for his exercise of discretion in withholding evidence.").
179. See ABA Formal Op. 09-454, supra note 122, and related discussion.
180. See Stephanos Bibas, Prosecutorial Regulation versus Prosecutorial Accountability, 157 U. PA. L. REV. 959, 977-83 (2009) (arguing that tougher disciplinary rules generally are not going to be effective at changing prosecutorial behavior because they will not necessarily lead to increased enforcement, and advocating for solutions based on corporate stakeholder strategies to increase accountability of each office).
181. See W. Bradley Wendel, Non-Legal Regulation of the Legal Profession: Social Norms in Professional Communities, 54 VAND. L. REV. 1955, 1957 (2001) ("A fairly stable consensus now seems to exist in the legal ethics literature that rules of 'ethics' stated in the form of enforceable penal codes, have limited utility to remedy many of the observed problems with the professional conduct of lawyers.").
182. See United States v. Hammad, 858 F.2d 834, 839 (2d Cir. 1988) (declining to interpret DR 7-104 as coextensive with the Sixth Amendment because the Model Code of Professional Responsibility is "designed to safeguard the integrity of the profession" and therefore "secures protections not contemplated by the Constitution").
183. 28 U. S. C. § 530B (2006).
184. See Stern v. U. S. Dist. Court for Dist. of Mass., 214 F.3d 4, 20 (1st Cir. 2000) (in addressing whether local federal rule adopting 3.8 (f) and constraining subpoenas to defense attorneys violated rulemaking power of district court, the court concluded that the McDade Amendment did not render issue moot: the regulations pursuant to 530B "dispel the notion that § 530B grants states or local federal district courts the power, in the guise of regulating ethics, to impose strictures [on federal prosecutors] that are inconsistent with federal law");
185. United States v. Syling, 553 F. Supp. 2d 1187, 1192-93 (D. Haw. 2008) (holding that state ethics rule could not be applied to impose a duty on federal prosecutors to present exculpatory evidence to grand jury). The second paragraph of the McDade Amendment provides that "the Attorney General shall make and amend rules of the Department of Justice to assure compliance with this section. "
186. U. S. C. § 530B (b). The Attorney General has implemented a regulation under the Act providing that "[§] 530B requires Department attorneys to comply with state and local federal court rules of professional responsibility, but should not be construed in any way to alter federal substantive, procedural, or evidentiary law or to interfere with the Attorney General's authority to send Department attorneys into any court in the United States."
187. C. F. R. § 77. 1 (b) (emphasis added);
188. see Hillsborough Cnty. v. Automated Med. Labs., Inc., 471 U. S. 707, 713 (1975) (explaining that state laws can be preempted by federal regulations as well as by federal statutes);
189. See United States v. Colo. Supreme Court, 189 F.3d 1281, 1287 (10th Cir. 1999) (citing factors court should look to in deciding whether rule is one of ethics or procedure for purposes of McDade Amendment).
190. See Judith A. McMorrow, The (F) Utility of Rules: Regulating Attorney Conduct in Federal Court, 58 SMU L. REV. 3, 22 (2005) (explaining collapse of effort to create uniform rules of attorney conduct in federal court).
191. See Carrie Menkel-Meadow, Ethics and the Settlement of Mass Torts: When the Rules Meet the Road, 80 CORNELL L. REV. 1159, 1217-19 (1995) (arguing that ethical rules alone will not promote just settlements in class actions, and that courts need to undertake more substantive review of settlement processes and outcomes under Fed. R. Civ. P. 23 (e)). A distinguished panel on the subject of spoliation of e-discovery at Duke Law School recently concluded that the rules of civil procedure are the appropriate vehicle to address the preservation of electronic records and consequences for failing to do so.
192. Thomas Y. Allman, Preservation Rulemaking after the 2010 Litigation Conference, 11 SEDONA CONF. J. 217, 225 (2010);
193. see Dan H. Willoughby, Jr., Rose Hunter Jones & Gregory R. Antine, Sanctions for E-Discovery Violations: By the Numbers, 60 DUKE L. J. 789 (2010).
194. See Benjamin H. Barton, Institutional Analysis of Lawyer Regulation: Who Should Control Lawyer Regulation-Courts, Legislatures, or the Market?, 37 GA. L. REV 1167, 1205-08 (2003) (concluding that when enacting professional conduct rules, state supreme courts may be too susceptible to the lawyer lobby and too inaccessible to the public);
195. see also LAFAVE, ISRAEL, KING & KERR, 1 CRIMINAL PROCEDURE § 1. 7 (f) (some state constitutions give authority over criminal rulemaking directly to the judiciary, while other states follow the model of the Rules Enabling Act and consider it a delegation of authority from legislative branch).
196. ABA Formal Op. 09-454, supra note 122, at 7.
197. See Christina Parajon, Discovery Audits: Model Rule 3.8 (d) and the Prosecutor's Duty to Disclose, 119 YALE L. J. 1339, 1143-44 (2010) ("[V]agueness inhibits the implementation of the Model Rule, a process that is demonstrably incomplete. Research indicates that local disciplinary authorities are generally reluctant to find and sanction 3.8 (d) violations....");
198. See FED. R. CRIM. P. 16 (d) (2) (D) (authorizing court to enter any sanction for noncompliance "that is just under the circumstances");
199. see also United States v. Shaygan, 661 F. Supp. 2d 1289, 1292-93 (S. D. Fla. 2009) (awarding attorney fees to defense counsel under Hyde Amendment following acquittal for discovery violations);
200. United States v. W. R. Grace, CR 05-07-M-DWM (D. Mont. 2009) (adverse jury instruction).
201. See generally United States v. Horn, 29 F.3d 754, 766-67 (1st Cir. 1994) (discussing inherent supervisory powers of the federal courts);
202. United States v. Jones, 620 F. Supp. 2d 163, 178-80 (D. Mass. 2009) (same).
203. In re Attorney C, 47 P.3d 1167 (Colo. 2002).
204. N. C. State Bar Rules, ch. 2, Rule 3.8 (d) (emphasis added).
205. Russell D. Covey, Signaling and Plea Bargaining's Innocence Problem, 66 WASH. & LEE L. REV. 73, 77 (2009);
206. Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 YALE L. J. 1909, 1948 (1992).
207. See Daniel P. Blank, Plea Bargain Waivers Reconsidered: A Legal Pragmatist's Guide to Loss, Abandonment and Alienation, 68 FORDHAM L. REV. 2011, 2040-42 (2000) (arguing that Brady disclosure insures the voluntariness of guilty pleas, promotes factual accuracy, and encourages meaningful consent);
208. Erica Hashimoto, Toward Ethical Plea Bargaining, 30 CARDOZO L. REV. 949, 952 (2008) ("Lack of information about impeachment or exculpatory evidence exacerbates the inequity of the plea process because without access to this information, defendants have no leverage to obtain pleas that accurately reflect the strength of the government's case against them.").
209. See Brady v. United States, 397 U. S. 742, 757 (1970) (upholding a guilty plea against later attack on grounds that it was not voluntary: "We find no requirement in the Constitution... that a defendant must be permitted to disown his solemn admissions in open court that he committed the act with which he is charged simply because it later develops that the state would have had a weaker case than the defendant had thought.");
210. McMann v. Richardson, 397 U. S. 759, 771 (1970) (plea of guilty based on reasonably competent advice of counsel not open to later attack on the ground that counsel have misjudged admissibility of confession: "All the pertinent facts normally cannot be known unless witnesses are examined and cross-examined in court.... In the face of unavoidable uncertainty, the defendant and his counsel must make their best judgment as to the weight of the State's case.").
211. Under Supreme Court precedent a guilty plea is voluntary and intelligent if the defendant (1) is aware of the essential nature of the charges against him, (2) is advised by competent counsel, and (3) is not induced to plea by threats, inducements, or improper promises. Brady, 397 U. S. at 755.
212. See Laura Berend, Less Reliable Preliminary Hearings and Plea Bargains in Criminal Cases in California: Discovery Before and After Proposition 115, 48 AM. U. L. REV. 465, 472 (1998).
213. See FED. R. CRIM. P. 11.
214. See United States. v. Garsson, 291 F. 646, 649 (S. D. N. Y. 1923) ("Our procedure has been always haunted by the ghost of the innocent man convicted. It is an unreal dream."). Although criticism certainly may be leveled at Judge Hand's cynical observation in Garsson, especially in light of modern technology's ability to help exonerate those wrongfully convicted by a jury after trial, our moral concern about the incidence of false conviction is justifiably less where the defendant admits his guilt before a judge under oath.
215. See, e.g., Bordenkircher v. Hayes, 434 U. S. 357, 363 (1978) ("[D]efendants advised by competent counsel and protected by other procedural safeguards are... unlikely to be driven to false self-condemnation. ");
216. Menna v. New York, 423 U. S. 61, 62 n. 2 (1975) (per curiam) ("[A] counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case.");
217. see also United States. v. Hyde, 520 U. S. 670, 676-77 (1997) ("Given the great care with which pleas are taken under [the] revised Rule 11, there is no reason to view pleas so taken as merely 'tentative, ' subject to withdrawal before sentence whenever the government cannot establish prejudice."
218. (quoting FED. R. CRIM. P. 32 advisory committee's note) (alteration in original)).
219. United States v. Ruiz, 536 U. S. 622, 630-31 (2002) (recognizing that the extent to which preplea impeachment disclosure helps a defendant depends on the defendant's independent knowledge of the prosecution's case).
220. See Strickland v. Washington, 466 U. S. 668, 691 (1984) (holding that guarantee of effective assistance of counsel under Sixth Amendment encompasses defense attorney's obligation to conduct reasonable investigation of facts);
221. see also Padilla v. Kentucky, 130 S. Ct. 1473, 1484 (2010) (explaining that, when considering motions for post-conviction relief after guilty plea on grounds of ineffective assistance of counsel, there is no relevant distinction between acts of omission or commission of defense counsel for purposes of Strickland analysis). 199.
222. See ABA MODEL RULES OF PROF'L CONDUCT R. 3. 4 (d), R. 4.1 (1983).
223. Ruiz, 536 U. S. at 631.
224. While it is true that in many jurisdictions a defendant may impeach his own witness, see FED. R. EVID. 602, and thus could conceivably call the lead agent for the primary purpose of getting impeachment evidence in front of the jury, as a matter of discovery rather than permissible trial strategy, the Brady/Giglio line of cases does not require the government to assist the defense by disclosing impeachment information for defense witnesses
225. See, e.g., United States v. Johnson, 581 F.3d 320, 331 (6th Cir. 2009);
226. United States v. Presser, 844 F.2d 1275, 1285 (6th Cir. 1988).
227. It is for this reason that some states do not require the government to disclose the list of witnesses it plans to call until a specified number of days before trial. See, e.g., CAL. PENAL CODE §§ 1054. 1 (a), 1054.7 (prosecuting attorney must produce witness list no fewer than thirty days before trial);
228. DEL. SUPER. CT. CRIM. R. 12. 3 (a) (2) (attorney general must produce witness list no fewer than twenty days before trial).
229. FED. R. CRIM. P. 16, unlike the criminal discovery rules in many jurisdictions, does not require the government to turn over a list of witnesses prior to trial.
230. Although the Jencks Act, 18 U. S. C. § 3500, allows a prosecutor to turn over witness statements immediately after that witness has testified on direct examination, as a practical matter most federal prosecutors turn over Jencks material within a reasonable time before trial, often as part of an agreed-upon discovery order.
231. See Ellen S. Podgor, Criminal Discovery of Jencks Witness Statements: Timing Makes a Difference, 15 GA. ST. U. L. REV. 651, 671 (1999).
232. 18 U. S. C. § 3500 (2006).
233. See United States v Bobadilla-Lopez, 954 F.2d 519, 521 (9th Cir. 1992).
234. *9 (W. D. Wash. Apr. 9, 2010) (ruling that a Washington state ethical rule requiring a prosecutor to make "timely" disclosure of exculpatory evidence to the accused did not override the Jencks act by operation of the McDade Amendment, and that in any event, disclosure of witness statements eight weeks before trial was timely for purposes of state ethics rule). The court recognized in Colacurcio that "[i]n general, it will be difficult at best to extract 'information' from a witness statement without revealing the witness's identity or at least giving substantial clues as to the witness's identity." Id.
235. 18 U. S. C. § 3771 (a) (1) (2006).
236. See State v. Harris, 680 N. W.2d 737, 752-53 (Wis. 2004). Whether a prior withdrawn allegation of sexual assault can be used to impeach an alleged rape victim will depend on the particular context of the case and the contours of the state's rape shield statute. The allegation of child abuse may have been withdrawn because it was insincere or inaccurate, or it may have been withdrawn because family members or medical professionals caring for the victim did not wish to expose her to further trauma or intimidation.
237. See Dennis v. Commonwealth, 306 S. W.3d 466, 472 (Ky. 2010) (under Kentucky's rape shield rule, evidence concerning an alleged victim's prior allegation of sexual impropriety is not admissible unless the proponent establishes at a pretrial hearing that the accusation was demonstrably false);
238. State v. Guenther, 854 A.2d 308, 321 (N. J. 2004) (collecting cases).
239. See Pennsylvania v. Ritchie, 480 U. S. 39, 60 n. 17 (1987) (recognizing that all fifty states have enacted statutes providing in some fashion for the confidentiality of state records of child abuse investigations, and reconciling a criminal defendant's right to a fair trial under the Fourteenth Amendment with this statutory privilege by remanding for in camera judicial review to determine what information was material to the defense).
240. See, e.g., 735 ILL. COMP. STAT. 5/8-802. 1 (d) (2003);
241. MASS. GEN. LAWS ANN. ch. 233, § 20J (2000);
242. N. Y. C. P. L. R. § 4510 (b) (MCKINNEY 2007).
243. See Tera Jackowski Peterson, Distrust and Discovery: The Impending Debacle in Discovery of Rape Victim's Counseling Records in Utah, 2001 UTAH L. REV. 695, 705-06 (2001) (explaining that, after Ritchie, procedures governing disclosure of counseling records of rape victims "vary widely");
244. see also Commonwealth v. Dwyer, 859 N. E.2d 400, 418 (Mass. 2006) ("Before ordering that a summons issue for [presumptively privileged] records, [a] judge... must evaluate whether the... requirements of relevance, admissibility, necessity, and specificity have been met....") (internal quotations omitted).
245. See, e.g., CAL. PENAL CODE § 832. 7 (a) (West 2008);
246. N. Y. CIV. RIGHTS LAW § 50-a (MCKINNEY 2009).
247. FED. R. CRIM. P. 16 (d) (1). The Classified Information Procedures Act (CIPA) also allows the government to move for a protective order to protect against the disclosure of any classified information that might pose a harm to national security.
248. See 18 U. S. C. app. 3 §§ 1, 3 (2006).
249. MODEL RULES OF PROF'L CONDUCT R. 3. 8 (d) (1983).
250. Brady v. United States, 397 U. S. 742, 750-51 (1970);
251. see Albert Alschuler, The Prosecutor's Role in Plea Bargaining, 36 U. CHI. L. REV. 50, 58 (1968).
252. See Samuel R. Gross et al., Exonerations in the United States 1989 Through 2003, 95 J. CRIM. L. & CRIMINOLOGY 523, 536 (2005) (a study of defendants later exonerated through DNA evidence showed that six percent of them had pleaded guilty).
253. See Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 HARV. L. REV. 2468, 2486-87 (identifying structural impediments that distort plea bargaining, including mandatory minimum sentences).
254. See Markus Dirk Dubber, American Plea Bargains, German Lay Judges, and the Crisis of Criminal Procedure, 49 STAN. L. REV. 547, 552-53 (1997) (advocating for enhancing legitimacy of plea bargaining by improving Rule 11 colloquies and reducing prosecutors' sentencing leverage). (Pubitemid 127430168)
255. See R. Michael Cassidy, Some Reflections on Ethics and Plea Bargaining: An Essay in Honor of Fred Zacharias, 48 SAN DIEGO L. REV. 93, 105 (2011) (condemning such practice as highly coercive).
256. See MODEL RULES OF PROF'L CONDUCT R. 3. 7 (a) (1983);
257. see also In re Attorney C, 47 P.3d 1167, 1169 (Colo. 2002). If the prosecutor anticipates that risk and brings another witness into the conversation, such as a victim witness advocate or police officer, that agent then must undertake the additional burden of memorializing the conversation in writing so that it can be accurately disclosed to the defense.
258. United States v. Bagley, 473 U. S. 667, 675 (1985) ("[T]he prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial.").
259. United States v. Hamilton, 107 F.3d 499, 509 (7th Cir. 1997).
260. See, e.g., N. C. GEN. STAT. ANN. § 15A-903 (2010);
261. E. D. Wisc. Crim. R. 16.
262. See generally Robert P. Mosteller, Exculpatory Evidence, Ethics, and the Road to Disbarment of Mike Nifong: The Critical Importance of Open File Discovery, 15 GEO. MASON L. REV. 257 (2008).
263. Notwithstanding Ruiz, the Supreme Court of Wisconsin has interpreted that state's pertinent rule of criminal procedure to require a prosecutor, upon request, to turn over material impeaching information prior to a guilty plea, at least where the change of plea occurs close to the scheduled trial date. See State v. Harris, 680 N. W.2d 737, 755-56 (Wis. 2004) (affirming allowance of motion to withdraw guilty plea where prosecutor failed to turn over in child sexual assault prosecution other pending accusation by victim against grandfather, because other incident might have been used to show sexual knowledge by youthful victim).
264. The court in Harris was interpreting Wis. STAT. § 971. 23, which required the disclosure of exculpatory evidence "within a reasonable time before trial." Id. at 755.
265. See Margaret Colgate Love, The Revised ABA Model Rules of Professional Conduct: Summary of the Work of Ethics 2000, 15 GEO. J. LEGAL ETHICS 441, 469 (2002);
266. see, e.g., FED. R. CRIM. P. 12.1 (requiring notice of alibi defense);
267. FED. R. CRIM. P. 12. 2 (requiring notice of insanity defense);
268. FED. R. CRIM. P. 12. 3 (requiring notice of public authority defense).
269. Even if a court takes an objective approach and asks whether the disclosure of the withheld evidence would have caused a reasonable defendant to elect to proceed to trial, that task is still exceptionally difficult. See Ferrara v. United States, 456 F.3d 278, 294 (1st Cir. 2006) ("While this checklist is useful, experience teaches that each defendant's decision as to whether or not to enter a guilty plea is personal and, thus, unique. Consequently, the compendium of relevant factors and the comparative weight given to each will vary from case to case.").
270. See HOOPER & THORPE, supra note 76, at 25-38 (providing a district by district comparison).
271. See, e.g., D. ARIZ. LOC. R. 16.1;
272. D. WYO. CRIM. R. 16. 1.
273. See, e.g., N. D. N. Y. R. Crim. P. 14. 1 (b) (2);
274. M. D. TENN. CRIM. R. 16. 01 (a) (2) (d).
275. D. HAW. CRIM. R. 16. 1 (a) (7), (g) (2) (requiring disclosure of Brady material seven days after arraignment, and impeachment material "as ordered by the court");
276. N. D. N. Y. R. CRIM. P. 14.1 (b) (2), (d) (1) (requiring disclosure of Brady material fourteen days after arraignment and Giglio material fourteen days prior to trial);
277. D. VT. CR. R. 16 (a) (2), (d) (1) (requiring disclosure of Brady material fourteen days after arraignment and Giglio material fourteen days prior to jury selection).
278. S. D. ALA. R. 16. 13 (b) (1) (B) (requiring disclosure of all information "favorable to the defendant... without regard to materiality");
279. S. D. GA. CRIM. R. 16. 1 (f) (requiring disclosure of "any evidence favorable to the defendant" within seven days of arraignment).
280. Laura I. Appleman, The Plea Jury, 85 IND. L. J. 731, 741 (2010).
281. See Jenny Roberts, Too Little, Too Late: Ineffective Assistance of Counsel, the Duty to Investigate, and Pre-Trial Discovery in Criminal Cases, 31 FORDHAM URB. L. J. 1097, 1099, 1123 (2004) (providing an overview of jurisdictional variations).
282. N. H. SUP. CT. R. 98 (A) (2) (iv);
283. TENN. R. CRIM. P. 16, advisory commission comment.
284. See, e.g., CAL. PENAL CODE § 1054. 1 (e) (West 2008);
285. WIS. STAT. ANN. § 971. 23 (1) (h) (West 2008);
286. MASS. R. CRIM. P. 14 (a) (1) (A) (iii).
287. See, e.g., LA. CODE CRIM. P. ANN. art. 718 (1);
288. OHIO CRIM. R. 16 (B) (1) (5).
289. See, e.g., ILL. SUP. CT. R. 412 (c);
290. MINN. R. CRIM. P. 9.01 (6).
291. See, e.g., ILL. SUP. CT. R. 412 (c), (d);
292. WIS. STAT. ANN. § 971. 23 (1) (h).
293. See, e.g., ALA. R. CRIM. P. 16.1 (c) (1);
294. S. C. R. CRIM. P. 5 (a) (3).
295. CAL. PENAL CODE § 1054. 1 (e) (West 2011).
296. See CAL. PENAL CODE § 1054.7.
297. Massachusetts requires disclosure of "promises, rewards or inducements" made to Commonwealth witnesses, MASS. R. CRIM. P. 14 (a) (1) (A) (ix). Illinois requires disclosure of "any record of prior criminal convictions" of persons whom the state intends to call as witnesses.
298. ILL. SUP. CT. R. 412 (a) (vi).
299. MD. R. 4-262 (d) (1).
300. See MD. R. 4-263 (d) (6) (A) - (G) (including prior conduct of untruthfulness, agreements, or understandings to induce testimony, prior criminal convictions, and pending charges against witness, prior materially inconsistent statements, medical or psychiatric condition that may impair the witness's ability to testify truthfully and accurately, the fact that the witness has taken but did not pass a polygraph, and the failure of the witness to identify the defendant or a codefendant).
301. See Rory K. Little, The ABA's Project to Revise the Criminal Justice Standards for the Prosecution and Defense Functions, 62 Hastings. L. J. 1111 (2011)
302. (draft standards available at appendix). The Criminal Justice Standards Committee has encountered the same tensions and difficulties with regard to preplea impeachment disclosures as those identified in this article. The proposal as presently drafted distinguishes between disclosure obligations before trial, id. at 1147 (Proposed Standard 3-5.5), and disclosure obligations before a guilty plea, id. at 1148-49 (Proposed Standard 3-5.7 (e)). For disclosure obligations before trial, the Standards Committee recommends specifically adding reference to information that "impeaches the government's witnesses or evidence." Id. at 1147 (Proposed Standard 3-5.5 (a)). It also expressly dispenses with the materiality element of Brady, by requiring pretrial disclosure "regardless of whether the prosecution thinks it will change the result of the proceeding." Id. (Proposed Standard 3-5.5 (c)). Thus, according to these draft standards, all impeachment evidence must be turned over before trial. But in the case of plea bargains, the Committee reverts to the bald "tends to negate guilt" language of the old standard, thereby preserving the "materiality" ambiguity. All evidence "tending to negate guilt" should optimally be turned over before a guilty plea, although a prosecutor "on an individualized basis [may] seek and accept a knowing and voluntary waiver." Id. at 1149 (Proposed Standard 3-5.7 (e), (f)). Even in that event, however, the "prosecutor should always disclose evidence known to the prosecutor that directly suggests the defendant is innocent." Id. (Proposed Standard 3-5.7 (f)). On the difficult issue of preplea disclosure of impeachment information, therefore, the Standards Committee has essentially "punted." Ellen Yaroshefsky, Prosecutorial Disclosure Obligations, 62 HASTINGS L. J. 1321, 1341 (2011) ("This leaves unresolved the debate over whether impeachment evidence should be revealed prior to entry of a guilty plea.").
303. See State v. Curtis, 384 So. 2d 396, 398 (La. 1980) (explaining that the sole eyewitness's failure to identify the defendant from earlier photo array was materially impeaching of eyewitness's later in-court identification because "[in court] identification was the most important and key evidence presented against defendant, and his reliability would have been a crucial factor in the jury's determination of defendant's guilt").
304. See generally R. Michael Cassidy, "Soft Words of Hope:" Giglio, Accomplice Witnesses, and the Problem of Implied Inducements, 98 NW. U. L. REV. 1129 (2004).
305. See Roviaro v. United States, 353 U. S. 53, 64 (1957) (explaining the importance of such evidence).
306. See, e.g., JACK B. HOOD & HERBERT H. HENRY II, ALABAMA CRIMINAL TRIAL PRACTICE FORMS § 16: 3 (II) (20) (I), (M) (2010) (including as part of a discovery template requests for information relating to the misidentification of the defendant and promises made to witnesses);
307. OHIO CRIMINAL DEFENSE MOTIONS F 2: 6 (2008) (same).
308. D. MASS. R. 116. 2 (B) (1), (2).
309. The Maryland Rules of Criminal Procedure require the prosecutor in circuit court cases to disclose within thirty days of the defendant's first appearance "an oral statement of the witness, not otherwise memorialized, that is materially inconsistent with another statement made by the witness or with a statement made by another witness." MD. R. 4-263 (d) (6) (D) (emphasis added).
310. The Local Rule of the United States District Court in Vermont defines Giglio material to include "the content of substantially inconsistent statements that a witness has made concerning issues material to guilt or punishment." D. VT. R. 16. 0 (d) (1) (B).
311. Neil A. Lewis, Dismissal for Stevens, but Question on 'Innocent', N. Y. TIMES, Apr. 12, 2009, at A14, available at http://www.nytimes.com/2009/04/12/us/ politics/12stevens.html;
312. see Transcript on Hearing on Motion to Set Aside Verdict at 13-14, United States v. Stevens, No. 08-cr-231 (EGS), 2009 WL 6525926 (D. D. C. Apr. 7, 2009).