Fifty years after Brady v. Maryland, defense attorneys around the United States continue to struggle to get basic information from prosecutors. This is even more of an issue in the ninety-four to ninety-seven percent of criminal cases that are resolved by guilty pleas. As the quote above illustrates, prosecutors can use discovery as leverage in the plea negotiation process. Unfortunately, the rule the Supreme Court established in Brady does little to prevent this kind of gamesmanship.

In Brady, the Court required the prosecution to turn over “evidence favorable to an accused . . . where the evidence is material either to guilt or to punishment.” The Brady standard developed, however, in the context of a case that went to trial; thus far the Court has not shown an understanding of the discovery concerns specific to plea bargaining. This failure persists despite the fact that our criminal justice system depends on plea bargaining and routinely penalizes defendants who either do not plead guilty or who do not plead guilty early in the process. As long as prosecutors do not withhold exculpatory information, Brady provides no protection against prosecutors who want to link plea offers to discovery.

Fifty years later, Brady fails to protect defendants’ rights in the context of a system that routinely pressures them to plead guilty before they know the full extent of the prosecution case against them and in circumstances under which this inadequate information may mean that their lawyers are at a disadvantage in trying to negotiate better deals. Equally troubling is the possibility that, in the absence of good information, lawyers will be unable to fully explain to their clients why they should accept that early “good deal.” As a result, defendants may ultimately plead out later in the process to a worse deal.

Following the U.S. Supreme Court’s recent decisions on plea bargaining, the time has come to reexamine the Brady standard in the specific and predominate context of plea bargaining. Lafler v. Cooper and Missouri v. Frye, were companion cases in which the Supreme Court recognized the right to effective assistance of counsel in plea bargaining. These cases are noteworthy as signaling that the Court is moving beyond viewing trials as the “touchstone” of criminal cases. As this article will discuss, it is time for the Court to recognize that effective assistance of counsel in plea bargaining requires that defense lawyers have basic information about the case, both to fully advise their clients and to effectively negotiate on behalf of their clients.

This article will first briefly examine how the Brady standard applies and fails to protect defendants in plea bargaining. Next, this article will explain why the recent Supreme Court decisions in Lafler and Frye demand that the Court revisit Brady and consider defense rights to discovery in the specific context of plea negotiations. The article will also offer specific suggestions for defense lawyers to better protect the record on appeal for discovery issues for plea bargaining cases post-Lafler and Frye. Finally, this article will argue for legislative reform that would require open-file discovery as a remedial approach in addition to waiting for the Supreme Court to more fully guarantee defense rights to discovery in plea bargaining. In concluding that legislative action is necessary, this article will use a recent change in Texas law as an example of useful improvements while also illustrating specific problems that can occur when policy-makers and legislators write a discovery law focused on trials and thereby fail to protect defense rights to discovery during the more common process of plea bargaining.