Charging on the Margin

2. Felony Discovery Costs Defendants charged with felonies typically receive more ample discovery than defendants charged with misdemeanors. (135) This usually occurs because of the additional mandatory discovery requirements that the government is typically subject to in felony cases and the increased mechanisms that defendants have for developing discovery in felony cases. (136) As a result, felony prosecutors are often forced to endure the additional costs of heightened discovery obligations--costs which add up quickly for prosecutors managing swollen caseloads. Additional discovery requirements can also reduce some of the government's bargaining power during plea negotiations, especially if the additional disclosures would force the prosecutor to lay bare evidentiary weak spots--yet another reason why borderline cases with evidentiary concerns might get routed to the misdemeanor track. The degree to which jurisdictions afford felony defendants more discovery varies. For example, in the federal system most (though not all) discovery rules apply equally to defendants facing misdemeanor charges as those facing felony charges. (137) Many state jurisdictions, however, create significant disparities in how discovery is handled in felony and misdemeanor cases. For example, several states that require "open file" discovery do so only in cases involving felony offenses. In Arizona, for instance, only felony defendants are entitled to receive "[a]ll then existing original and supplemental reports prepared by a law enforcement agency in connection with the particular crime with which the defendant is charged" (138) at the outset of the prosecution. Similarly, in North Carolina, a pioneering state for open file discovery, only felony defendants are entitled to the wealth of materials made available by such disclosure requirements. (139) Some jurisdictions that do not require open file discovery also make significant distinctions between felony and misdemeanor offenses. In Georgia, for example, state law provides more expansive discovery regarding statements made by the defendant to members of law enforcement in felony prosecutions than in misdemeanor prosecutions. (140) Moreover, Georgia prosecutors in felony cases must disclose to the defendant more information regarding potential witnesses and witness statements than is required in misdemeanor cases. (141) Although many jurisdictions create differing discovery obligations for felony and misdemeanor prosecutions, I am not aware of any jurisdiction where the discovery rules are altered based on an offense's potential collateral consequences. 3. Potential Future Costs: Right to a Jury Trial A final set of procedural guarantees that varies across offense types is a defendant's right to demand a jury trial. According to the Supreme Court, the right to a jury trial provides the defendant "an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge." (142) From the perspective of the prosecutor, however, a jury trial is often unwelcome. As an initial matter, jury trials take longer to complete than bench trials. Jury trials require additional time for jury selection, jury instructions, and lengthier opening and closing statements. According to one analysis of federal prosecutions, jury trials on average took four times longer to complete than bench trials. (143) As one former prosecutor I interviewed pithily put it: "[A] two-hour bench trial becomes a three-day event with a jury." (144) But the costs associated with the trial itself are only part of the equation. Compared to bench trials, jury trials often require prosecutors to engage in more intensive preparation and frequently entail more pretrial litigation over procedural and evidentiary issues. (145) For these reasons, offenses that result in a jury trial are substantially more costly to prosecute than those that end with a bench trial. …