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Washington and Lee Law Review - Volume 73:1


by Jenia I. Turner & Allison D. Redlich

Our criminal justice system resolves most of its cases through plea bargains. Yet the U.S. Supreme Court has not required that any evidence, even exculpatory or impeachment evidence, be provided to the defense before a guilty plea. As a result, state rules on pre-plea discovery differ widely. While some jurisdictions follow an “open-file” model, imposing relatively broad discovery obligations on prosecutors early in the criminal process, others follow a more restrictive, “closed-file” model and allow the prosecution to avoid production of critical evidence either entirely or until very near the time of trial. Though the advantages and disadvantages of both models are debated, surprisingly little is known about the models’ real-world operation.

In this Article, we report the results of an original empirical study in which we surveyed practicing prosecutors and criminal defense attorneys about their pre-plea discovery practices. We surveyed attorneys from Virginia and North Carolina, two adjacent states, which are demographically and geographically similar, but have notably different discovery rules. North Carolina mandates open-file discovery early in the criminal process. By contrast, Virginia protects certain critical documents, such as witness statements and police reports, from discovery.

Our findings indicate that, as expected, open-file discovery can promote more informed guilty pleas. It leads to improved pre-plea disclosure of most categories of evidence. The practice is also viewed as more efficient in that it reduces discovery disputes and speeds up case dispositions. We also found little evidence that open-file discovery endangers the safety of witnesses, a common argument against the practice. Open-file discovery does not, however, appear to enhance the disclosure of certain impeachment evidence, such as the prior convictions of prosecution witnesses. Further, practitioners reported that even when the entire case file is turned over to the defense pre-plea, the file is frequently missing some information relevant to the case. The Article interprets these findings and concludes with a general endorsement of the North Carolina open-file system over the Virginia closed-file system as a better guarantor of informed decisions and efficient process in criminal cases.


by Lisa Kern Griffin

Concerns about hindsight in the law typically arise with regard to the bias that outcome knowledge can produce. But a more difficult problem than the clear view that hindsight appears to provide is the blind spot that it actually has. Because of the conventional wisdom about error review, there is a missed opportunity to ensure meaningful scrutiny. Beyond the confirmation biases that make convictions seem inevitable lies the question whether courts can see what they are meant to assess when they do look closely for error. Standards that require a retrospective showing of materiality, prejudice, or harm turn on what a judge imagines would have happened at trial under different circumstances. The interactive nature of the fact-finding process, however, means that the effect of error can rarely be assessed with confidence. Moreover, changing paradigms in criminal procedure scholarship make accuracy and error correction newly paramount. The empirical evidence of known innocents found guilty in the criminal justice system is mounting, and many of those wrongful convictions endured because errors were reviewed under hindsight standards. New insights about the cognitive psychology of decision-making, taken together with this heightened awareness of error, suggest that it is time to reevaluate some thresholds for reversal. The problem of hindsight blindness is particularly evident in the rules concerning the discovery of exculpatory evidence, the adequacy of defense counsel, and the harmfulness of erroneous rulings at trial. The standards applied in each of those contexts share a common flaw: a barrier between the mechanism for evaluation and the source of error. This essay concludes that reviewing courts should consider the trial that actually occurred rather than what “might have been” in a different proceeding and proposes some new vocabulary for weighing error.


by Jenny-Brooke Condon

Recent debates about immigration have focused overwhelmingly on unauthorized migration and the respective roles of the federal and state governments in enforcing immigration law. But that emphasis in law and theory has obscured a critical civil rights question of our time: what measure of equality is due to those with the opportunity to abide by the rules of entry, who are now lawfully present within the United States?

Although the United States Supreme Court recognized decades ago that lawfully present migrants are a discrete and insular minority entitled to heightened judicial protection under the Equal Protection Clause of the Fourteenth Amendment, in recent years, a body of little-analyzed federal and state court decisions has eroded that longstanding precedent, elevating deference to the federal government’s power to set immigration policy over a previously established constitutional commitment to immigrants’ equal treatment by the states. This Article critically explores this development and argues that although federalism may legitimately serve as a lens through which to gauge arbitrary discrimination, federalism principles should not stealthily serve as a preemption-like doctrine beneath the surface in equal protection cases. To reign in federalism’s potentially disruptive impact on immigrants’ rights, this Article argues that courts should consider federalism principles only as an interpretative tool in equal protection cases involving migrants and recommit to immigrants’ long settled right to equal treatment by the states.