CrimProf Blog

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

Friday, June 16, 2017

McConkie on Criminal Discovery

Mcconkie danielDaniel S. McConkie Jr. (Northern Illinois University - College of Law) has posted The Local Rules Revolution in Criminal Discovery (Cardozo Law Review, Forthcoming) on SSRN. Here is the abstract:

Over the last few decades, federal district court judges throughout the country have used local rules to greatly expand pretrial criminal disclosure obligations, especially for prosecutors. These local criminal discovery rules both incentivize prosecutors to act as ministers of justice and empower judges to manage prosecutorial disclosures. This quiet revolution is now well underway, and the time has come to amend the Federal Rules of Criminal Procedure to bring these innovations to all the districts.



Commentators have long recognized that neither the Supreme Court precedent nor the Federal Rules effectively require prosecutors to provide the defense with enough discovery to properly prepare for plea negotiations and trial. Nor do they empower judges to effectively monitor prosecutors’ discovery decisions. Reformers have largely failed to reform discovery on a national scale, but individual districts, by passing local discovery rules, have waged small battles to great effect.

These rules require prosecutors to turn over more discovery earlier in the case. They expand the scope of mandatory prosecution discovery beyond Rule 16 and Brady; they accelerate the timing of discovery; and they require the parties to work together to arrive at discovery stipulations.

The rules also greatly enhance the role of judges and empower them to monitor the discovery phase of the case. Through specific discovery rules, stipulations, and discovery management orders, the rules greatly expand judges’ grounds for ordering discovery and imposing sanctions. They also give judges more opportunities to raise and manage discovery issues at mandatory discovery conferences. Finally, the rules expand (and delimit) discovery motion procedures.

Increasing prosecutorial disclosure obligations and expanding the power of judges over pretrial discovery could improve the quality of criminal justice nationwide. First, although more empirical research needs to be done, there is some evidence that these rules are working as intended. Second, by putting more information into the hands of the defense, these local rules could help the parties, but especially defendants, to reach more informed plea agreements. Third, these local discovery rules may help re-balance the criminal justice system, which is currently dominated by prosecutors, in favor of trial judges and defense attorneys. Hopefully, the local rules revolution will serve as a model for other districts to follow and ultimately result in amendments to the Federal Rules.

http://lawprofessors.typepad.com/crimprof_blog/2017/06/mcconkie-on-criminal-discovery.html

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