Criminal Justice Section
Criminal Justice Magazine
Volume 16, Issue 3
Peter A. Joy and Kevin C. McMunigal
Disclosing Exculpatory Material in Plea Negotiations
Are prosecutors constitutionally compelled to disclose exculpatory material to criminal defendants who plead guilty? Are they ethically bound to do so? Consider a hypothetical rape prosecution in which the victim identifies the defendant from police photos of known sexual offenders. Because the victim’s identification is strong and the offense violent, the prosecutor refuses to enter into plea negotiations. A week before trial, the victim is apprehensive about the trial and the prospect of cross-examination. She tells the prosecutor that she fears she made a mistake in the photo identification and now thinks the man she picked from the police photos is not the man who raped her. May the prosecutor negotiate a guilty plea without disclosing the victim’s statement about her possible misidentification of the defendant?
Despite the fact that more than 90 percent of federal and state criminal cases are resolved through guilty pleas, the prosecutor’s disclosure obligations regarding exculpatory material in plea negotiations remain controversial. Courts and commentators, though, have recently been paying increased attention to these issues. This column examines the current state of the law on prosecutorial disclosure of exculpatory material in plea negotiations and discusses both practical and ethical implications for defense lawyers and prosecutors.
The Brady rule
Nearly 40 years ago, the Supreme Court held in Brady v. Maryland, 373 U.S. 83 (1963), that due process requires a prosecutor to disclose material exculpatory evidence to a defendant. In subsequent cases, the Supreme Court refined the Brady doctrine. In Giglio v. United States, 405 U.S. 150 (1972), for example, the Court expanded the scope of the Brady rule by holding that impeachment evidence falls within the Brady disclosure requirement. Later, though, the Court significantly limited the Brady rule by imposing a narrow definition of materiality. In United States v. Bagley, 473 U.S. 667, 682(1985), the Court explained that evidence in the hands of the government is material "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceedings would have been different."
Despite the nearly 40-year history of the Brady rule, the Supreme Court has yet to address, much less resolve, the question of whether the constitutional mandate of Brady applies in the context of plea negotiations. All Supreme Court cases interpreting and applying the Brady rule have involved convictions obtained by means of a trial. A growing number of lower courts, however, have addressed Brady issues in plea negotiations. These courts have reached contradictory conclusions. For example, in Matthew v. Johnson, 201 F.3d 353 (5th Cir. 2000), the Fifth Circuit rejected the claim that Brady applies to guilty pleas. Similarly, in Smith v. United States, 876 F.2d 655 (8th Cir. 1989), the Eighth Circuit held that in pleading guilty a defendant waives claims that the prosecution failed to disclose favorable evidence. Four other federal courts of appeals have reached the opposite conclusion by holding that Brady does apply to guilty pleas. ( Miller v. Angliker, 848 F.2d 1312 (2d Cir. 1988), cert. denied, 488 U.S. 890 (1988); Campbell v. Marshall, 769 F.2d 314 (6th Cir. 1985), cert. denied, 475 U.S. 1048 (1986 ); Sanchez v. United States, 50 F.3d 1448 (9th Cir. 1995); United States v. Wright, 43 F.3d 491 (10th Cir. 1994).) Federal district court and state cases are similarly split.
Ethical disclosure obligation
Prosecutors also have an ethical obligation to turn over exculpatory material. Rule 3.8 of the ABA’s 1983 Model Rules of Professional Conduct, adopted in most states, provides:
The 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 mitigate 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.
Disciplinary Rule 7–103(B) of the 1969 Model Code sets forth a similar obligation.
The prosecutor’s ethical disclosure duty under this rule is broader than the constitutional duty under Brady, as many commentators state. This more expansive ethical requirement was noted by the Supreme Court in Kyles v. Whitley, 514 U.S. 419, 432, when it said that Brady "requires less than . . . ABA Model Rule of Professional Conduct 3.8(d)." The ethics rule, for example, has no materiality restriction and is not limited to admissible evidence.
The ethics rule makes no specific mention of plea negotiations or guilty pleas. The language of the rule, especially its requirement of "timely disclosure," certainly mandates that prosecutors disclose exculpatory material during plea negotiations if not sooner. Yet, secondary sources, such as treatises, do not typically discuss the rule in the context of plea negotiations, and we can find no authority that applies the rule in that context.
Because their attention tends to focus on Brady’s constitutional mandate, prosecutors may not be aware of the ethics rule and the fact that it requires more than Brady. Even if they are aware of the rule, prosecutors may fail to perceive its clear message because of the legal profession’s general attitude toward disclosure in negotiation. Disclosure is a central issue in negotiation ethics. A number of commentators have argued for a duty of disclosure in the context of all negotiations, but the Model Rules have not adopted such a rule. Although affirmative misrepresentation is generally seen as unethical, nondisclosure appears to be an accepted convention for negotiators. Many seasoned defense attorneys and prosecutors accordingly expect each other to play their cards close to the vest unless there is a rule or decision to the contrary. These attitudes present the danger that prosecutors will draw the line between ethical and unethical behavior regarding exculpatory material by reference to prevailing practice standards accepting nondisclosure in negotiations rather than the clear language of Model Rule 3.8(d).
For federal prosecutors in particular, the tendency to be less than forthcoming about the weaknesses in their cases in plea negotiations is buttressed by the fact that prosecutors do not have an affirmative duty to turn over impeachment evidence concerning their witnesses under the Jenck’s Act and Federal Rule of Criminal Procedure 26.2 unless and until the witness testifies at trial. Pursuant to state discovery rules, state prosecutors in many jurisdictions, however, have a more extensive disclosure obligation at earlier phases in the case than their federal counterparts and, thus, may be more likely to recognize and respond to the ethical disclosure mandate.
Implicit Brady waivers
The Brady rule is familiar to prosecutors and defense counsel alike. Every day in state and federal trial courts, defense counsel request and prosecutors agree to provide Brady material as a routine part of pretrial motion practice. When, as often happens, the case is resolved through a negotiated plea, however, typically nothing is said about Brady material. Federal and state rules of criminal procedure covering plea allocution do not mention a defendant’s right to Brady material. And Brady disclosure is not usually listed in the litany of rights the defendant is told he or she is waiving when entering a guilty plea.
Defense lawyers tend to assume that a defendant has the constitutional right to receive Brady material prior to entry of a guilty plea. Prosecutors often view the defendant’s decision to plead guilty as extinguishing any such right—that receipt of Brady material is a trial right relinquished along with the right to a trial by pleading guilty.
Most plea agreements recited in open court, both state and federal, are conspicuously silent with respect to a defendant's Brady right. In the absence of express resolution of whether or not the prosecution has turned over all Brady material, by entering a guilty plea the defendant may be implicitly waiving rights to such material. Thus, in every case in which a defendant enters a guilty plea and the defense attorney fails to ascertain whether or not the prosecutor has turned over all Brady material, an implicit Brady waiver may be taking place.
Explicit Brady waivers
As a reaction to the Ninth Circuit’s decision in Sanchez, which recognizes that defendants pleading guilty retain their right to Brady material, federal prosecutors in California in the late 1990s inserted language in written plea agreements requiring a defendant to acknowledge that discovery is not complete and that the defendant waives the right to Brady material consisting of evidence tending to impeach the credibility of potential witnesses. Recently, in United States v. Ruiz, 241 F.3d 1157, (9th Cir. 2001), reh’g en banc granted, 242 F.3d 1202 (9th Cir. 2001), the Ninth Circuit, in a split decision, held that federal prosecutors in California could not condition recommendation of a downward departure in sentencing upon a defendant’s explicit waiver of the right to receive undisclosed Brady information. The majority reasoned that a defendant cannot intelligently and knowingly enter into a plea agreement without having considered Brady material. The Ninth Circuit has agreed to rehear the case en banc and its decision in Ruiz promises to settle for that circuit the legal viability of explicit Brady waivers. No other circuit has dealt with the issue of explicit Brady waivers.
Implications of Brady waivers
What are the practical implications in all this? From the defense perspective, there are several lessons.
Competent and effective representation dictates that defense lawyers find out if their particular jurisdiction has resolved the issue of the constitutional right to Brady material in plea negotiations. If the jurisdiction recognizes the constitutional right, the defense lawyer should inform the prosecutor and the court of the relevant law, insist on receipt of Brady material prior to plea negotiations, and ask the court to enforce this right.
If the law is unclear, which it presently is in many jurisdictions, the defense lawyer again should request Brady material during plea negotiations and ask the trial court for a ruling recognizing the defendant’s right to this material. The prosecutor may well provide Brady material in a particular case even if not clearly constitutionally required to do so in the jurisdiction to avoid having to brief and argue the issue. If the prosecutor hesitates to agree to provide Brady material during plea negotiations, that fact alone should put the defense lawyer on notice that there may be exculpatory evidence worth seeking either through independent investigation or through a court ruling. Even if the constitutional right to Brady material in plea negotiations is unclear, the defense lawyer can seek to make provision of such material a term of the plea agreement. If successful, the defendant then obtains a contractual right to the material.
Finally, even if the relevant jurisdiction has ruled that Brady does not apply to plea negotiations, the defense lawyer may nonetheless seek disclosure of exculpatory material by trying to make it a term of the plea agreement or through reliance on ethics rules such as Model Rule 3.8(d).
What about practical and ethical implications from the prosecutor’s perspective? Again, the starting point for prosecutors is to research the law and ethics rules in their jurisdictions.
If the jurisdiction imposes an obligation to reveal exculpatory material based on the Brady constitutional rule or a discovery rule, the prosecutor must live up to those obligations. If the law is unresolved in the particular jurisdiction, revealing Brady material during plea negotiations allows the prosecutor to avoid having to brief and argue the issue as well as the possibility of a constitutional violation if later a court agrees with the Ninth Circuit that Brady does apply to plea negotiations. One downside of full disclosure from the prosecutor’s point of view may be that in some cases prosecutors will be forced to dismiss or make more lenient offers in plea negotiations. On the other hand, revealing Brady material during plea negotiations may have the practical effect of preventing some defendants from pleading guilty to crimes for which they are not liable.
As noted above, the prosecutor has a clear ethical obligation in many jurisdictions to disclose exculpatory information in the government’s possession in a timely fashion regardless of its materiality, admissibility, or a defense request. Ethical prosecutors, therefore, will disclose all exculpatory information in the government’s possession prior to plea negotiations to insulate themselves from possible disciplinary action. Although we have found no disciplinary cases involving nondisclosure at the plea negotiations stage, discipline was recently imposed on a Colorado prosecutor in a closely related pretrial context for failing to disclose exculpatory information prior to a preliminary hearing.
The split in authority over whether or not Brady disclosure is required during plea negotiations and the pending litigation in the Ninth Circuit over explicit Brady waivers are drawing disclosure rights during plea negotiations to the forefront. Because the constitutional dimension of such disclosure is unsettled and its ethical aspect not widely recognized by the defense and prosecution bars, this area presents serious potential legal and ethical pitfalls. Defense lawyers and prosecutors alike should give careful consideration to the legal obligation of disclosure and their respective ethical obligations of competence and disclosure. Explicitly addressing disclosure of exculpatory material in every plea negotiation is a positive step toward avoiding those pitfalls.
Peter A. Joy is a professor of law and director of the Criminal Justice Clinic at Washington University School of Law in St. Louis, Missouri. Kevin C. McMunigal is the Judge Ben C. Green professor of law at Case Western Reserve University School of Law in Cleveland, Ohio.