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Open Files or Illusory Wiles

Farhan Buvvaji

Edited by Brett Banks, Roohie Sheikh, and Vedanth Ramabhadran


Stressed and Burdened 

In the context of criminal justice, prioritizing efficiency before fairness has become an ironic and hypocritical norm that undermines the definition of justice; however, the overburdened American legal system does not have a choice but to be efficient in the face of rampant incarceration. Indeed, the United States continues to lead the globe with an incarceration rate of 629 people per 100,000, an alarming statistic that has lasted for decades [1]. However, rather than serving as rehabilitation, time in prison has trapped Americans in a cycle of incarceration as released inmates suffer a recidivism rate of 44 percent within the first year of release [2]. The combination of imprisonment and rearrests has overburdened the justice and prison system through rampant delays, resource shortages, and prison backlogs. Thus, efficiency becomes a necessity, not an optional virtue. 

For the purpose of promoting efficiency, plea bargaining has been the ideal tool to avoid elongated trials and save judicial resources. Plea bargaining is a legal practice involving negotiations between prosecutors and defendants to plead guilty in exchange for more lenient sentencing. Such practices are standard; in fact, approximately 90 to 95 percent of all federal and state cases are decided through plea bargaining [3]. Beyond simply saving resources and resolving cases quickly, plea bargaining ensures defendants take responsibility and provides finality for impacted communities. However, criminal justice advocates have argued that the extent to which plea bargaining is utilized has blinded the legal system from pursuing fair criminal adjudication over efficiency [4]. The American Bar Association's report revealed that excessive plea bargaining could result in erroneous litigation. From unchecked police misconduct in pre-trial hearings to poor investigative procedures, defendants could lose the opportunity to litigate such errors [4]. These problems can also impact defense lawyers as plea bargains often waive the right to challenge witnesses and unconstitutionally derived evidence before trial. In turn, critics argue that some defendants are unfairly incentivized to accept plea bargains while being uninformed in the face of daunting charges [4]. Overall, this system has put many defendants in the position of gambling their lives in pursuit of a fair trial. 


Brady v. Maryland

Before trial, both the prosecution and the defense undergo the discovery phase, which refers to the period where parties exchange information related to the case. Although the laws that govern what information is required to be exchanged vary between states, parties often provide case-relevant evidence, interrogatories, and documents [5]. Pre-trial discovery is significant for cases since it ensures parties know case information and can help shape trial strategy. More importantly, however, discovery mainly aims to assist decision-making in the context of plea bargains. When the defendant has greater access to case facts and evidence, they are empowered to make an informed decision on whether the trial is worth risking in the face of a safer plea bargain deal. 

The significance of discovery became notable after Brady v. Maryland, a landmark Supreme Court case that dealt with evidence suppression and due process. The defendant, John Brady, had planned an armed bank robbery alongside his co-defendant, Charles Boblit. However, while stealing a vehicle, Boblit killed the owner, William Brooks. Both men were found guilty of first-degree murder and received the death penalty from the state Circuit Court of Anne Arundel County, but Brady maintained that he was not involved with the murder. After the ruling, Brady was later informed that Charles Boblit confessed to the murder, but the prosecution had suppressed this evidence during Brady's trial. The Maryland Court of Appeals accepted Brady's appeal and ruled that the suppression of evidence undermined due process but demanded a retrial instead of dismissing his conviction. After another appeal to the Supreme Court, the Warren Court agreed to hear the case regarding discovery misconduct. In a 7-2 decision, the Warren Court affirmed the Maryland Court of Appeal's ruling regarding due process violation and retrial. 

In the context of Brady, the prosecution suppressed exculpatory evidence, which refers to any evidence that assists the defense in exonerating the defendant from their charges. Brady v. Maryland created a discovery precedent that withholding exculpatory evidence violates the due process clause of the 14th Amendment insofar as it undermines the fairness of the trial and could result in false convictions [6]. Now known as "Brady disclosure," the prosecution must disclose all exculpatory evidence, defined as any material that creates a "reasonable probability that the trial outcome would have been different had the information been disclosed." Ultimately, Brady was a significant step forward in advancing fairness during pre-trial discovery and has since been a critical statute in Rule 16 of the Federal Rules of Criminal Procedure that governs proper discovery and inspection [6]. 

Yet, despite this rectification, prosecutorial misconduct persists as Brady violations continue to occur in both state and federal cases. In fact, the Supreme Court has seen at least one case per decade involving a Brady violation since the initial ruling [6]. While that may sound nominal, it's imperative to realize that the Supreme Court chooses to review less than one percent of appealed cases [6]. Yet, there are always numerous Brady claims that require Supreme Court relief. A famous example comes from 2012 when Special Prosecutor Henry F. Schuelke III released a report exposing prosecutorial misconduct conducted by the FBI against a Senator who was wrongfully and deliberately accused of corruption charges [6]. Thus, while Brady and Rule 16 establish significant and necessary precedents, they have not curbed prosecutorial misconduct in totality. 

A common explanation for this phenomenon has been that Brady places a conflicting burden on prosecutors, resulting in erroneous or unintentional evidence suppression. As prosecutors pursue convictions, they must analyze evidence to determine if it can be considered Brady material that undermines their case – similar to a defense lawyer [6]. By placing competing roles on prosecutors, Brady's requirements could result in fallacious judgment regarding whether or not material is exculpatory. For instance, a prosecutor may view a particular piece of evidence as useless for the defense and choose not to disclose it, leading to accidental evidence suppression [6]. 


Open-File Discovery

Due to the persistence of Brady violations and unintentional evidence misconduct, a form of pre-trial discovery known as open-file discovery has gained traction across states. As the name suggests, open-file discovery requires the prosecution to disclose "everything" in their file – including witness statements, witness names, physical evidence, expert reports, and investigative reports. This contrasts with closed-file and selective disclosure, which restrict what information can be exchanged between parties. Proponents of open-file discovery argue that the practice will substantially reduce prosecutorial misconduct and Brady violations since it removes the need to judge whether the evidence is exculpatory. Providing all documents would logically remove any risk of accidental evidence suppression. Additionally, open-file discovery could ensure defendants receive the most information possible when evaluating their case, resulting in a more informed decision on whether to accept a plea bargain or pursue a trial. As plea bargains remain extraordinarily high within the nation, open-file discovery aims to provide fairer pre-trial discovery to curb the number of plea bargains in the long term. 

As early as 2004, states began adopting this practice through statutes and informal procedural policies. Additionally, the definition of open-file has continued to evolve since 2004, with some states being more aggressive with the degree of disclosure while others, like North Carolina, made certain exceptions early on. Conversely, in 2010, Ohio rapidly altered its rules by including witness statements and police reports as eligible for discovery. Ultimately, since the early 1990s there has been a gradual broadening of discovery to encompass evidence ranging from depositions to witness statements [5]. 

The silver lining is that, given this timeframe, there's been a substantial sample size to determine whether open-file discovery reform is viable for curbing incarceration, plea bargains, and Brady violations. Yet, the results have proved to be far from promising. Indeed, in an analysis of North Carolina and Texas, open-file discovery failed to change the severity of prosecution charging, plea bargaining rates, duration of sentences, trial rates, or even the speed of depositions [7]. In each of those metrics, open-file discovery either had no markedly significant result or instead saw these problems exacerbated year to year. Thus, while the theoretical benefits of open-file discovery are promising, they fail to materialize in the real world due to four drawbacks: defense burdens, gamesmanship, prosecution burdens, and witness intimidation. 


Burdening the Defense

Since Open-file discovery exchanges nearly all relevant case documents, defense counsels can quickly become overburdened by heavy caseloads. More information theoretically improves trial strategy and informed decision-making, but it relies on the underlying assumption that attorneys have enough resources at their disposal to evaluate large caseloads. Indeed, attorneys in states that have employed open-file discovery have reported a lack of time and resources to analyze discovery packages properly [7]. This criticism would thoroughly explain the lack of improvement in plea-bargaining rates or sentencing since heavy caseloads will greatly diminish informed decision-making by counsel and the defendant. Additionally, this issue is exacerbated for indigent defendants who require public defenders, which make up 80 to 90 percent of criminal cases [8]. Unfortunately, the funding for public defenders in states like North Carolina and Texas is below the national average. Thus, many of these defendants are assisted by a counsel who must evaluate all discovery packages with restrictive time and resources before trial. Indeed, 73 percent of county-based public defender offices achieved the maximum number of cases per attorney, with many public defenders only meeting with clients for minutes to evaluate a guilty plea rather than conduct a further investigation [7]. Ultimately, this results in overburdened public defenders and worse defense counsel representation for indigent defendants.

Furthermore, finding exculpatory evidence amidst a mass of case documents is difficult, especially when accounting for police reports that do not often create impartial crime reconstructions [7]. These reports are inherently designed to justify arrests and quickly produce convictions to clear the case. Thus, officers frequently fail to collect, record, or transfer exculpatory evidence during the investigation process [7]. 

Not only would this add insurmountable pressure on public defenders, but open-file discovery will further strain judicial resources by opening Strickland claims against defense counsels -- referring to defendants challenging their attorney's quality of representation and appealing their case due to ineffective assistance [8]. These claims would be more straightforward to approve due to the high likelihood of defense counsel missing favorable evidence from the prosecution's files. While open-file discovery could potentially save judicial resources by reducing Brady violations, any administrative benefit would easily be offset by rampant Strickland claims [8]. 


Gamesmanship 

Since open-file discovery creates a new set of rules, it opens the path for abusive gamesmanship when exchanging information. Although evidence misconduct could be done unintentionally, the prosecution has the opportunity to gain advantages over defendants by overburdening the defense with information. Known as a "Brady dump," prosecutors can transfer overwhelming amounts of evidence to make exculpatory evidence challenging to find [8]. One case, United States v. Causey, demonstrated this concern as the prosecution dumped 80 million pages of discovery documents on the defense counsel. Hiding exculpatory evidence became easy and was done again in United States v. Mmahat, where the government even conceded that they knowingly transferred two pages of exculpatory evidence in the form of 500,000-page caches [4→8].   Courts have attempted to stop Brady Dumps by imposing stricter limitations, which aim to discourage bad-faith gamesmanship by prosecutors [8]. However, these limitations are rarely enforceable because the burden of proof for intentional misconduct is on the defendant. Due to preexisting time and resource constraints placed on public defenders, this burden becomes nearly impossible to meet on a case-by-case basis. Thus, many of these Brady Dumps rely on internal whistleblowers in the prosecutor's office to make such gamesmanship come to light [8]. 

Furthermore, open-file discovery has been abused to lull defense counsels into believing they truly have all the evidence when, in reality, some is withheld. Through fake gestures of good faith from prosecutors, defense counsels are less likely to file motions for additional disclosure of potential Brady evidence. Beyond written documents, this good-faith-induced complacency can extend to Brady's evidence that requires the defense counsel's investigation to be uncovered – such as witness uncertainty or police officer communications [8]. Thus, an open-file discovery would have defense counsels believing that all potentially exculpatory evidence is exchanged when, instead, other pieces of evidence require deeper investigation or witness questioning to uncover.  

Strickler v. Greene demonstrated this misconduct as the defense counsel didn't file a pre-trial motion for discovery of exculpatory evidence because of an open-file policy, only to learn later that Brady evidence didn't come with the prosector's file [9]. The prosecutors in that case allowed the defense to inspect their entire case file, which included police reports and witness statements. However, the Brady evidence was instead located in policing filings, and the prosecutor's office was in a different county [9]. The Duke Lacrosse rape case in North Carolina had a similar outcome where the prosecutors did not disclose exploratory evidence and was only revealed due to the highly resource-backed defense team. The prosecutor, Michael B. Nifong, was later disbarred after suppressing critical exculpatory evidence that showed DNA evidence from four unidentified men and not the lacrosse players [9]. His final excuse was that this evidence was lost in the massive pile of evidence, and he simply "slipped up" by not disclosing the Brady evidence [9]. Such gamesmanship can historically tarnish lives. Chief prosecutor Carmen Marino of Cuyahoga County used the discovery to lull defense counsels into believing all evidence had been disclosed [9]. Many of his cases involved capital prosecution and death penalties, only to be later exposed for intentionally withholding Brady evidence from defense counsels. Due to his misconduct, several innocent victims were sentenced to death despite the existence of exonerating evidence for their cases [9].  Whether or not intentional, open-file discovery creates a new system of rules that unethical parties can exploit. While these cases have exposed such misconduct, this may not always be the case for many defendants who have exonerating evidence. Given the sheer time and resource strains that defense counsels must endure, especially when assisting indigent defendants, it's unlikely such gamesmanship will always be caught. Whether through Brady Dumps or bad faith disclosure, unethical parties gain a significant advantage over defendants under open-file discovery policies. 


Burdening the Prosecution

While we have discussed how the defense can be burdened alongside empowering prosecutors who enable evidence misconduct, ethical prosecutors who aim to disclose all information required under their respective open-file discovery policy also face an added burden. This has been most apparent in New York after the passage of their Criminal Procedure Law Article 245. One such requirement under 245 is that prosecutors must turn over not only the information they have but also that gathered by the police [10]. Any violation risks sanctions. 

Due to the expanded workload and pressure, New York suffered a mass attrition of prosecutors and staffing crises [10]. The Manhattan DA's office reported that record attrition occurred due to "unprecedented evidentiary demands" from 245, leading to mass burnout and many prosecutors pursuing less demanding work. Unfortunately, these burdens become cyclical as fewer staff members mean more evidentiary demands on those who can comply with discovery requirements. As a result, in a span of a year, Manhattan and Brooklyn lost 20 percent of their prosecutors [10].  

Hiring new attorneys also became increasingly difficult. Most public defenders report being drawn to these low-paying, high-stress role jobs due to their passion for making a difference in communities. However, rather than focusing on case development and adequately representing defendants, these attorneys spend more time compiling discovery documents. The result has been a steep decline in the number of applicants applying to DA offices in New York, with one county experiencing a catastrophic staff turnover rate of 50 percent since the passage of 245 [10]. These strains are simply unacceptable, especially when the legal system is already overburdened before open-file discovery policies due to rampant incarceration and arrests. 

Furthermore, similar to the defense, prosecutors under open-file discovery face significant time pressures. Many states have a defined amount of time dedicated to how long pre-trial discovery should be. Open-file discovery makes this period incredibly difficult as prosecutors must marshal massive amounts of evidence to meet deadlines. In states like New York, the penalty for missing the deadline is a case dismissal [10]. Thus, prosecutors operate in a "race against the clock" to avoid automatic case dismissal by not being ready for trial in time. 

The time pressure of discovery also worsens when prosecutors are forced to coordinate their disclosures with the investigations and documents of law enforcement departments. Otherwise known as Giglio material, this information from law enforcement is necessary for the defense to potentially impeach the credibility of prosecution witnesses and police officers involved in the trial [10]. However, the investigative departments aren't often responsible for disclosure, but the prosecutors are in charge of marshaling and compiling their information [10]. Given the time pressure, however, prosecutors and law enforcement agencies often have adversarial resentment amongst each other as agencies would instead discipline officers off-the-book rather than offer such records of infractions to prosecutors. Yet, once again, prosecutors don't have a choice but to collect all Giglio material to avoid appeals or sanctions [10]. 

Time pressures, evidentiary demands, and interagency friction ultimately overburden prosecutors greatly. Not only is turnover an ongoing concern, but such demands also reduce the quality of case development and increase the risk of Brady violations, as prosecutors may not be as diligent when disclosing files [10]. Thus, while open-file discovery aims to improve fairness and informed decision-making, it only worsens these virtues by dramatically diminishing the quality of representation, case development, and evidentiary review by both the defense and prosecutors. 


Witness Intimidation 

Since open-file discovery provides the opportunity to review and verify prosecution evidence, information about witnesses could be included. Witness intimidation is a valid concern for the integrity of cases since 26 percent of witnesses are threatened by defendants or their associates. Even absent direct witness intimidation, simply revealing witness identity can disincentivize investigation cooperation, further disrupting the judicial process. Such information would be readily available under open-file discovery, with some states granting access to witnesses' statements, criminal histories, identification, and informant rewards. 

Fortunately, some of these states have adopted stringent witness protection measures to minimize intimidation. While North Carolina and Ohio don't heavily restrict the possession of such files, Texas adopted a two-tiered system where a defense counsel receives witness files and must redact identifying information before a defendant can review the documents [7]. Other states implemented statutes to make certain witness information exempt from discovery. In contrast, some states, like New Jersey, required an ex parte motion with a "good cause" to receive witness documents [7]. 

After these changes, few empirical studies were conducted on witness intimidation or tampering. However, New York implemented Criminal Procedure Law Article 245 of 2019, which broadened discovery within the state [10]. One requirement under these discovery statutes was the exchange of witness information, decreasing their anonymity and raising risks associated with testifying. Despite similar witness protective orders in place, the witnesses could not be safeguarded for three reasons. First, prosecutors couldn't guarantee that all witnesses would receive a protective order [10]. Second, it becomes nearly impossible to determine whether or not a defendant aims to intimidate or tamper with a witness. Third, witnesses are heavily relied upon during early investigations.

As expected, New York experienced a widespread chilling effect as fewer witnesses and victims were willing to testify – especially in drug, gang, and domestic violence cases. Witness intimidation was also seen to substantially impact investigations, as their reluctance to testify made arrests and closing cases challenging to achieve [10]. The result was that adult felony arrests fell by 14 percent despite the number of felony crimes increasing between 2019 and 2021 [10]. 

Additionally, these new measures further strained judicial resources by increasing victim services costs and draining witness protection funds. With the increased demand for witness protection, these services are vital to keeping witnesses willing to cooperate with cases. If witnesses remain reluctant, the process becomes more time-consuming, as prosecutors must constantly interview new witnesses until someone becomes willing to testify [10]. Ultimately, the empirical ramifications of open-file discovery have demonstrated tangible witness intimidation and its downstream effects on trials, investigations, and state resources. 


Recent Empirical Results

While it's proven that open-file discovery has had little to no impact on plea bargaining rates or the duration of sentences, it's imperative to determine if open-file discovery at least reduces crime and violence. Yet, it has failed in this metric as well. 

After the passage of 245 in New York, shootings rose by 102 percent and murders by 51 percent. Not only have there been more victims of crime, but New York's open-file discovery has been associated with a sharp decline in rehabilitating criminal defendants [10]. The Manhattan Institute reports that as more cases are dismissed, defendants have fewer incentives to accept rehabilitative services. In Queens County alone, the number of individuals who received services from crime victim advocacy groups fell by approximately 12.5 percent despite the number of court appearances increasing by more than 60 percent [10]. 

Furthermore, the increased judicial and financial strains resulting from open-file discovery have made it increasingly difficult to help. Beyond just straining attorneys on both sides financially, implementing open-file discovery required an administrative overhaul that cost millions per county. From the increased costs of information sharing to expanded witness services, New York had to reallocate over 32 million dollars [10]. Yet, despite these corrections, the legal system remained overburdened due to attorney burnout, appeals, and neverending investigations resulting from open-file discovery. 


Conclusion

Open-file discovery undoubtedly has admirable and correct goals. Our current legal system prioritizes efficiency over fairness, undermining the very foundation of justice. The overuse of plea bargains in the wake of mass incarceration has been rampant and quickly pursued by attorneys, which validates concerns of erroneous litigation that leaves defendants uninformed. However, discovery is precisely the time in which defendants can gain a better understanding of risks while also shaping potential case strategy, whether it involves exonerating evidence or proof of poor investigative procedures. The purpose of open-file discovery is to ensure such information is readily available, allowing for fair trials and informed plea bargains. 

Yet, these goals have only manifested through legal theory—not reality. States that have employed open-file discovery have seen no difference in sentencing or plea bargaining rates, with some, like New York, even witnessing a significant rise in crime paired with a severely strained legal system. However, the reason for this is backward from the original intention of the open-file discovery policies. 

Despite the original goal being to help defendants, open-file discovery has only increased burdens on defense counsels through prosecutorial gamesmanship, Strickland claims, and unmanageable caseloads. Rather than resulting in more informed decision-making, defendants are often left with poor representation and little knowledge of the existence of exonerating evidence. Inversely, unethical prosecutors become more empowered while also enduring additional burdens themselves, ranging from more reluctant witnesses to constant evidence marshaling to avoid sanctions. In pursuing fairness and knowledgeable defendants, open-file discovery only sacrifices case development, argumentation, and diligence – a true example demonstrating the difference between theory and reality.

 

[1] Incarceration Rates by Country 2024, Incarceration rates by country 2024 (2024), https://worldpopulationreview.com/country-rankings/incarceration-rates-by-country (last visited Mar 6, 2024). 

[2] Criminion, Nine states have reduced their prisoner population by 30%. what do they have in common? Criminon International (2023), https://www.criminon.org/who-we-are/groups/criminon-international/nine-states-have-reduced-their-prisoner-population-by-30-percent/#fn:5 (last visited Mar 6, 2024). 

[3] Lindsey Devers, Plea and charge bargaining Bureau of Justice Assistance (2011), https://bja.ojp.gov/sites/g/files/xyckuh186/files/media/document/pleabargainingresearchsummary.pdf (last visited Mar 6, 2024). 

[4] George Will, Opinion | how justice is undermined by excessive reliance on plea ... The Washington Post (2023), https://www.washingtonpost.com/opinions/2023/03/10/government-overreliance-plea-bargaining/ (last visited Mar 6, 2024). 

[5] Brian Altman, Making the case for the use of discovery depositions in ... Arkansas Law Review (2022), https://scholarworks.uark.edu/cgi/viewcontent.cgi?article=1159&context=alr (last visited Mar 6, 2024). 

[6] Mike Klinkosum, Pursuing discovery in criminal cases: Forcing open the prosecution’s files NACDL (2013), https://www.nacdl.org/Article/May2013-PursuingDiscoveryinCriminalCas (last visited Mar 6, 2024). 

[7] Ben Grunwald, The Fragile Promise of Open-File Discovery Connecticut Law Review (2017), https://digitalcommons.lib.uconn.edu/cgi/viewcontent.cgi?article=1359&context=law_review (last visited Mar 6, 2024). 

[8] Brian Fox, An argument against open-file discovery in criminal cases Notre Dame Law Review (2013), https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1706&context=ndlr (last visited Mar 6, 2024). 

[9] Bennett Gershman, Litigating Brady v. Maryland: Games Prosecutors Play Digital Commons (2007), https://digitalcommons.pace.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1201&context=lawfaculty (last visited Mar 5, 2024). 

[10] Hannah Meyers, Destroyed by discovery: How New York State’s Discovery Law destabilizes the Criminal Justice System Manhattan Institute (2023), https://manhattan.institute/article/destroyed-by-discovery-how-new-york-states-discovery-law-destabilizes-the-criminal-justice-system (last visited Mar 6, 2024).

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