Two Models of Pre-Plea Discovery in Criminal Cases: An Empirical Comparison

Despite its holding in Brady v. Maryland that prosecutors must disclose exculpatory evidence to the defense at some point before trial, the Court has never required that any evidence be disclosed before a defendant’s entering a guilty plea. Consequently, state courts have split into one of two camps: (1) open-file systems such as North Carolina that impose broad discovery obligations upon prosecutors early in the criminal process; and (2) closed-file systems such as Virginia that follow the Federal Rules of Criminal Procedure quite strictly and require relatively little evidence to be disclosed. Open-file systems provide defendants access to the prosecutors’ entire case file, with the exception of work product. In contrast, closed-file systems notoriously allow prosecutors to avoid producing police reports, witness information, and witness statements either entirely or until the date of trial. Through a survey of practicing prosecutors and criminal defense attorneys that explored North Carolina and Virginia’s opposite pre-plea discovery practices, this study revealed that open-file discovery promotes more informed guilty pleas than closed-file discovery. Open-file systems mandate more-extensive and more-predictable disclosure of factually-exculpatory evidence, reduce discovery disputes, and accelerate case dispositions. However, they do not enhance the disclosure of impeachment evidence against the prosecutor’s witnesses.

“While the open-file system may not always produce better disclosure of impeachment or all categories of exculpatory evidence, it does generally enhance disclosure of most types of evidence. It also appears to reduce discovery disputes and promote speedier dispositions of cases.” p. 297