Waiving prosecutorial disclosure in the guilty plea process: A debate on the merits of "discovery" waivers

Some U.S. Attorneys' have added to their plea bargain contracts a waiver of the defendant's right to additional discovery, which may include evidence impeaching the credibility of witnesses. Consequently, many prosecutors in these districts neither review the files of key witnesses nor disclose any impeaching evidence to defense counsel after signing a plea agreement. Eric a Franklin finds that these waivers raise several concerns. First, the waiv ers force defense attorneys into a difficult position-advising their client s to sign the plea agreement minimizes the possibility that significant exc ulpatory or impeaching evidence will appear. Second, the waivers may violat e a defendant's constitutional right to receive from the prosecutor all mat erial evidence bearing an his guilt or innocence as articulated in Brady v. Maryland. In examining the impact of the waivers on defense counsel and on defendants' Brady rights, Franklin concludes that if a waiver raises a Bra dy issue, courts are unlikely to enforce it. From a policy standpoint, howe ver, Franklin finds the waivers objectionable, even where no Brady issue ex ists, since they not only undermine the fairness and accuracy of the crimin al justice system but also produce no significant benefit. In addition to r emoving the waivers from plea agreements, Franklin proposes requiring prose cutors to discover and disclose favorable information to the defense at the time of the plea.