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.

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.