Plea Bargaining, Discovery, and the Intractable Problem of Impeachment Disclosures

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. 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. 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.

In each of these cases, prosecutors drew the ire of the judiciary for their cavalier approach to discovery and their lack of attention to the constitutional rights of defendants. These stories and others have made the public more attuned than ever before to the prevalence and pernicious consequences of prosecutorial misconduct.