CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, June 24, 2014

Fox on Open-File Discovery

Brian Fox has posted An Argument Against Open-File Discovery in Criminal Cases (Notre Dame Law Review, Vol. 89, No. 1, 2013) on SSRN. Here is the abstract:

This article argues that, for the most part, open-file discovery proponents fail to recognize the added burden that defense counsel would face under a regime in which all items of the prosecution’s evidence are available for investigation by the defense. This is particularly true in the eighty to ninety percent of criminal cases where the defendant is indigent, and the court appointed defense counsel is operating under strict resource constraints.

This article also argues that advocates of open-file discovery fail to recognize that in the majority of cases involving prosecutorial misconduct, the prosecutor’s intentional wrongdoing will be sufficient to overshadow any reasonable amount of diligence performed by defense counsel.

This article will contend that instituting an open-file discovery policy would only compound the problem of providing adequate representation to defendants. In light of the fact that the overwhelming majority of defendants are represented by publicly funded counsel, this article will focus on the effects of open-file discovery to indigent defendants. Specifically, it will argue that any attendant benefits received by a single defendant under an open-file discovery regime would be largely outweighed by the costs to defendants as a whole and to the judicial system. This article will demonstrate that the economic consequences of open-file discovery would be disastrous in the current judicial environment and would serve as nothing more than a shifting of burdens from the prosecution to the defense. The effect of this burden shifting would lead to more overworked public defenders and lower quality representation for indigent defendants. This article will also demonstrate that in the cases often cited as the hallmark evidence showing a need for open-file discovery — those in which innocent defendants are convicted because the prosecution affirmatively fails to disclose exculpatory evidence — open-file discovery would serve no actual purpose in eliminating the prosecutorial misconduct. This article will show that open-file discovery would cause more harm than good by creating a situation in which prosecutors could overwhelm defense counsel with evidence, either intentionally or unintentionally, and frustrate defense counsel’s ability to locate and synthesize critical evidence.

| Permalink


Mr. Fox, you sir are a fool if you believe what you wrote. Good try though, I hope no one else reads this crap.

Posted by: Thomas R. Griffith | Jun 25, 2014 11:15:37 AM

A strong argument for the abolition of the student-edited law review. See Judge Richard A Posner, ‘The Future of the Student-Edited Law Review’ (1995) 47 Stanford Law Review 1131, 113 (noting the "handicaps of ignorance, immaturity, [and] inexperience" of student editors).

Posted by: M. C. Fabricant | Jun 26, 2014 11:30:17 AM

Post a comment