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39 Cardozo L. Rev. 59 (2017-2018)
The Local Rules Revolution in Criminal Discovery

handle is hein.journals/cdozo39 and id is 69 raw text is: THE LOCAL RULES REVOLUTION IN CRIMINAL DISCOVERY Daniel S. McConkiet Over the last few decades, federal district court judges throughout the country have used local rules to greatly expand pretrial criminal disclosure obligations, especially for prosecutors. These local criminal discovery rules both incentivize prosecutors to act as ministers of justice and empower judges to manage prosecutorial disclosures. This quiet revolution is now well underway, and the time has come to amend the Federal Rules of Criminal Procedure to bring these innovations to all the districts. Commentators have long recognized that neither Supreme Court precedent nor the Federal Rules effectively require prosecutors to provide the defense with enough discovery to properly prepare for plea negotiations and trial. Nor do they empower judges to effectively monitor prosecutors' discovery decisions. Reformers have largely failed to revolutionize discovery on a national scale, but individual districts, by passing local discovery rules, have waged small battles to great effect. These rules require prosecutors to turn over more discovery earlier in the case. They expand the scope of mandatory prosecution discovery beyond Rule 16 and Brady; they accelerate the timing of discovery; and they require the parties to work together to arrive at discovery stipulations. The rules also greatly enhance the role of judges and empower them to monitor the discovery phase of the case. Through specific discovery rules, stipulations, and discovery management orders, the rules greatly expand judges' grounds for ordering discovery and imposing sanctions. They also give judges more opportunities to raise and manage discovery issues at mandatory discovery conferences. Finally, the rules expand (and delimit) discovery motion procedures. Increasing prosecutorial disclosure obligations and expanding the power of judges over pretrial discovery could improve the quality of criminal justice t Assistant Professor, Northern Illinois University College of Law, former Assistant United States Attorney (Sacramento), 2008-2013. I am grateful for the assistance of Lisa Bernstein and her students in the University of Chicago Law School's Legal Scholarship Workshop. I also thank the participants in Crimfest July 2015, who gave feedback on a very early version of this piece. I would also like to thank Alan Boudreau, Aliza Cover, Marc Falkoff, Brandon Garrett, Susan Klein, Heidi Kuehl, Jeffrey Parness, and Laurel Rigertas. Finally, I thank my research assistants David White and Whitney Wilkinson. All remaining errors are my own. 59

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