In the United States, guilty pleas account for ninety-seven percent of federal convictions and ninety-four percent of state convictions. This makes plea bargains, rather than trials, the central feature of today's criminal justice system. Despite this prevalence, courts have distinguished between plea bargaining and trials when deciding whether a prosecutor has an obligation to disclose exculpatory evidence, and, conversely, whether a defendant has a right to learn of that evidence.
A prosecutor's disclosure obligations during plea bargaining vary by jurisdiction and are often unclear. These obligations come from constitutional, statutory, and ethical rules. Each source of obligation has a different purpose and lens through which disclosure during plea bargaining is viewed and assessed. This Comment focuses on constitutional and ethical requirements. In general, constitutional disclosure rules seek to protect defendants as they plead guilty, ensuring that the defendant is knowingly and voluntarily waiving their constitutional rights when entering the guilty plea. In contrast, ethical rules focus on the conduct of the prosecutor, seeking to guarantee that the prosecutor acts as an administrator of justice within the bounds of the law rather than focusing only on convicting defendants.4 These goals shape the obligations that states and the federal government impose on prosecutors, but they also lead to inconsistent requirements.
Constitutional disclosure obligations arise from Brady v. Maryland and its progeny, which established that suppression of evidence that is material to either guilt or punishment violates due process. Circuits are split, however, on how to apply the Brady rule to plea bargaining. Several circuits agree that prosecutors have an obligation to disclose exculpatory evidence before a defendant pleads guilty. Other circuits, including the United States Court of Appeals for the Fifth Circuit, have held that a defendant has no right to exculpatory evidence during plea bargaining, reasoning that Brady's disclosure obligation is a trial right that does not extend to plea bargaining.
In addition to constitutional disclosure obligations, prosecutors face ethical requirements from professional rules, with each state developing its own rule using the American Bar Association Model Rules of Professional Conduct as a guide. The scope of each state's rule varies, sometimes leaving prosecutors unsure of how their ethical disclosure obligations compare to their constitutional and statutory obligations. While a few states have imposed broader ethical disclosure requirements than Brady mandates, other states, including Louisiana, have held that a prosecutor's ethical disclosure obligations are coextensive with their constitutional disclosure obligations. Given the Fifth Circuit's refusal to extend Brady disclosure requirements to plea bargaining, however, Louisiana's decision to define a prosecutor's ethical disclosure requirement as coextensive with Brady means that a prosecutor in the state has neither a constitutional nor an ethical duty of disclosure during plea bargaining.
This Comment advances two main arguments. It first argues that Louisiana places the lowest disclosure obligations on prosecutors in the country by comparing and overlapping the constitutional and ethical laws of different jurisdictions, and it then argues that Louisiana provides the least protection for defendants during plea bargaining because of those minimal obligations. Part II describes the national landscape for each source of obligation. Part III narrows the focus to Louisiana, describing the Fifth Circuit's justification for not applying Brady to plea bargaining and the Louisiana Supreme Court's interpretation of the scope of its ethical disclosure rule as coextensive with Brady. Part IV argues two points. First, it is inappropriate to define ethical rules as having a coextensive scope with constitutional rules because each rule has a different underlying purpose. Second, Louisiana's disclosure obligations result in unacceptably low protection for defendants during plea bargaining. Part V concludes.
About the Author
Kelly S. Smith, J.D. Candidate 2024, Tulane University Law School; M.A. 2010, Portland State University; B.A. 2008, University of Virginia. I would like to thank my advisor, Professor Maybell Romero, for her guidance and support. I would also like to thank my friends and colleagues at the Tulane Law Review for their assistance in preparing this Comment for publication. Finally, this Comment is dedicated to my family--Mike, Elisa, and Jude--for their enduring love and constant encouragement.
Citation
98 Tul. L. Rev. 537