Part I of this Article discusses the natural attraction between Brady-a rule requiring disclosure of evidence favorable to a defendant-and plea bargaining-a practice where such information is at a premium for defendants. Part II describes how an increasing number of courts have adapted Brady to fit in the world of a plea bargain, in the process changing Brady's point of reference from the jury's verdict to the defendant's tactical decision to plead guilty. Part ill argues that this change in focus narrows Brady's substantive coverage and renders the rule practically unenforceable following most guilty pleas. Part IV then assesses the value of that diluted version of Brady in relation to the principal goals that rules of disclosure should serve in plea bargaining: the goals of insuring accuracy in guilty pleas and informed choices in bargaining. Brady serves neither goal very well and, ironically, may even stand in the way of disclosure in cases where it is most needed. Finally, Part V considers the potential impact of "Brady waivers," explicit provisions in plea agreements that purport to waive Brady disclosure as a condition of the agreement. The waiver process itself may offer more meaningful protection for defendants than a doctrine allowing after-the-fact challenges based on claims of before-the-plea Brady violations. In my view, the unresolved debate over finality and disclosure-the debate that has split the federal circuits-is largely an exercise in futility. I do not believe that the accuracy or fairness of plea bargaining gains anything even if Brady survives a guilty plea. When we allow post-plea Brady challenges, we sacrifice finality to little effect; defendants receive only an illusion of protection in the exchange. We would do better to look for other approaches that do not pit the defendant's interest in disclosure against the finality of a guilty plea. If we are serious about informing defendants during plea bargaining, then we should address the problem of disclosure when it matters most: before the plea.

Document Type


Publication Date