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107 J. Crim. L. & Criminology 1 (2017)
Structuring Pre-Plea Criminal Discovery

handle is hein.journals/jclc107 and id is 9 raw text is: 0091-4169/17/10701-0001 THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 107, No. 1 Copyright C 2017 by Daniel S. McConkie Printed in US.A. CRIMINAL LAW STRUCTURING PRE-PLEA CRIMINAL DISCOVERY DANIEL S. MCCONKIE* Ninety-seven percent of federal convictions come from guilty pleas.' Defendants rely on prosecutors for much of the information about the government's case on which the decision to plead is based. Although federal prosecutors routinely turn over most necessary discovery to the defense, the law does not generally require them to turn over any discovery before the guilty plea. This can lead to innocent defendants pleading guilty and to guilty defendants pleading guilty without information that could have affected the agreed-upon sentence. This Article argues that the lack of a judicially enforceable pre-plea discovery regime flouts structural protections that due process is supposed to provide. Defendants who plead not guilty and go to trial get a jury to adjudicate guilt and a judge to preside over the proceedings and pronounce sentence. The judge and jury hear an adversarial presentation of the evidence, and the judge at sentencing can consider an even broader spectrum of information about the defendant and the crime. But defendants who plead guilty effectively act as their own judge and jury. Unfortunately, because prosecutors are not required to provide any pre-plea discovery, the * Assistant Professor, Northern Illinois University. J.D., Stanford Law School, 2004. Former Assistant United States Attorney (Sacramento), 2008-2013. My sincerest thanks to the BYU Law School Faculty Workshops, the Arizona Junior Scholars Forum (especially Cecelia M. Kingele, Jason Kreag, and Jordan Blair Woods), the Northwestern University Law School's Legal Scholarship Workshop (especially James T. Lindgren), Mark G. Kelman, Lawrence C. Marshall, and Evan J. Criddle for helpful feedback. I am also grateful to my research assistants, Carla Davis-Bey, Becky Perez, Camie Wood, and Whitney Wilkinson. Any errors herein are my own, but this article has benefitted greatly from my generous colleagues. 1 U.S. SENTENCING COMM'N, 2012 ANNUAL REPORT 42 (2012), http://www.ussc.gov/ sites/default/files/pdf/research-and-publications/annual-reports-and-sourcebooks/2012/2012 AnnualReport Chap5.pdf 1

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