Some Skepticism about Criminal Discovery Empiricism

This Response addresses Jenia Turner and Alison Redlich’s comparative analysis of criminal discovery practices in two neighboring states, Virginia and North Carolina. Whereas Virginia adheres to the traditional, category-driven approach, North Carolina requires its prosecutors to disclose the contents of their “file,” with some notable exceptions. Open-file discovery has quickly become a fertile source of debate among scholars and practitioners. Turner and Redlich have devised a valuable survey to test theoretical claims commonly asserted by open-file discovery’s opponents and supporters.

Unsurprisingly, the authors find that disclosure is generally broader in North Carolina (an open-file state) than in Virginia. More notable is the fact that the North Carolina prosecutors who answer the survey seem less opposed to open-file discovery than their Virginia counterparts. Those who favor the expansion of open-file discovery will find ample cause for celebration in several, but not all, of Turner and Redlich’s findings. In this Response, I express my own reservations, which rest partially on standard concerns with survey data, as well as the fact that some of open-file’s state level success may rely upon the availability of an entirely different criminal justice system (i.e., the federal system) for complex investigations and prosecutions.