CrimProf Blog

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

Monday, September 13, 2010

Podgor on Pre-Plea Discovery

Podgor ellen Ellen S. Podgor (Stetson University College of Law) has posted Pleading Blindly (Mississippi Law Review, Vol. 4, p. 80, Forthcoming) on SSRN. Here is the abstract:

In the criminal area, discovery violations are a continual concern. Recently, the Department of Justice (DOJ) was caught with discovery violations that reflected prosecutorial misconduct and improprieties. To its credit, the DOJ issued three Memos that sought to affirmatively promote office compliance with discovery obligations. The three Memos of former Deputy Attorney General David W. Ogden, however, fall short in an important area, discovery for defendants prior to entering into plea agreements.

This Essay places this discussion in the backdrop of existing legal scholarship and existing precedent, most importantly the Supreme Court opinion in United States v. Ruiz, that provides little support for mandating discovery to defendants prior to entering into a plea agreement. Protecting the importance of a voluntary and knowing plea cannot be overlooked in assuring an efficient system of justice. Unique concerns are also noted when the government is entering into a deferred prosecution agreement with a corporation or other entity. This Essay advocates for a more forceful response than merely having DOJ guidelines to remedy discovery violations that may influence the entering of a plea.

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