Preplea Disclosure of Impeachment Evidence

Plea bargaining and guilty pleas are among the most unsavory features of U.S. criminal procedure. In this sordid bazaar of bargained-for justice, the prosecutor dominates the encounter. The prosecutor is authorized to use an array of legally permissible threats to coerce a defendant to accept his offer,1 to retaliate against a defendant who declines his offer,2 or to engage in deception and concealment to force the deal.3 Because they lack knowledge of the evidence and the law-enforcement agenda, courts cannot or will not meaningfully supervise the plea. And given the much harsher consequences of a conviction after trial, a defendant has little choice but to accept the offer. Abuses pervade the guilty-plea process, with the unsettling consequence that millions more defendants are being punished than ever before, often with less justification, and under sloppier procedures.4 It is with respect to the prosecutor’s power to control the evidence and to decide how much of it to share with a defendant preplea that Professor R. Michael Cassidy aims his critique. In Plea Bargaining, Discovery, and the Intractable Problem of Impeachment