Plea Bargaining, Discovery and the Intractable Problem of Impeachment Disclosures

In a criminal justice system where guilty pleas are the norm and trials the rare exception, the issue of how much discovery a defendant is entitled to before allocution has immense significance. This Article examines the scope of a prosecutor's obligation to disclose impeachment information before a guilty plea. This question has polarized the criminal bar and bedeviled the academic community since the Supreme Court's controversial 2002 decision in United States v. Ruiz. A critical feature of the debate has been the enduring schism between a prosecutor's legal and ethical obligations-a gulf that the American Bar Association recently widened by issuing a controversial opinion interpreting Model Rule of Professional Conduct 3.8(d) to impose obligations on prosecutors well beyond the requirements of the Due Process Clause. The author addresses the controversial subject of impeachment disclosures from both an institutional and a substantive perspective. A great deal of legal scholarship aims directly at the content of proposed law reform without considering the threshold and pivotal question of what institution is best situated to administer those imposed duties. The author argues that as a matter of institutional competence and legitimacy, the courts are far better equipped to enforce criminal discovery obligations through rules of procedure than bar disciplinary authorities are capable of doing through attorney conduct rules. With regard to the substantive issue-that is, how much impeachment evidence should be turned over by a prosecutor before a guilty plea-the author proposes a categorical approach to impeachment disclosures that will mediate the tension between the defendant's interest in accurately assessing the strengths and weaknesses of the government's case and the state's interest in protecting the privacy and security of potential witnesses. INTRODUCTION 1430 I. EXCULPATORY EVIDENCE AND THE DUE PROCESS CLAUSE 1433 II. THE COMPLEX NATURE OF IMPEACHMENT EVIDENCE 1437 III. POST-RUIZ DEVELOPMENTS: REACTION BEGETS COUNTER-REACTION 1445 A. Federal Rule of Criminal Procedure 16 1445 B. ABA Model Rule 3.8(d) 1452 IV. WHO SHOULD REGULATE THE CONDUCT OF PROSECUTORS WITH REGARD TO PREPLEA IMPEACHMENT DISCLOSURES, AND HOW? 1460 A. Institutional Competence 1460 B. Fundamental Fairness 1465 V. POTENTIAL SOLUTIONS GOING FORWARD 1477 CONCLUSION 1486 INTRODUCTION Several recent high-profile cases have illustrated flaws with the government's discovery practices in criminal cases and have put prosecutors across the country on the defensive about their compliance with disclosure obligations. The conviction of former Alaska Senator Ted Stevens on ethics charges was set aside after it was revealed that federal prosecutors withheld notes of an interview with a key government witness; one member of the Stevens prosecution team who was under investigation for contempt subsequently committed suicide.1 The Supreme Court remanded a double murder case from Tennessee for potential resentencing after it was revealed that state prosecutors had withheld substantial evidence of inconsistent statements made by government witnesses.2 Chemical giant W.R. Grace and three of its high-level executives were acquitted on criminal environmental charges in Montana after a federal judge gave blistering jury instructions criticizing the prosecution team for failing to disclose the depth of their relationship with a star whistleblower. …