Ninety-seven percent of federal convictions are the result of guilty pleas. Despite the criminal justice system’s reliance on plea bargaining, the law regarding the prosecution’s duty to disclose certain evidence during this stage of the judicial process is unsettled. The Supreme Court’s decision in Brady v. Maryland requires the prosecution to disclose evidence that establishes the defendant’s factual innocence during a trial. Some courts apply this rule during plea bargaining and require the disclosure of material exculpatory evidence before the entry of a guilty plea. Other courts have held or suggested that the prosecution may suppress exculpatory evidence during plea bargaining, forcing the defendant to negotiate and determine whether to accept a plea offer or proceed to trial without it. Substantial disparities therefore exist in the bargaining power and decision-making ability of criminal defendants, depending on where they are charged.

This Note addresses the divide in how courts approach Brady challenges to guilty pleas. After analyzing the development of plea bargaining and the Brady rule, this Note concludes that a guilty plea is not valid if made without awareness of material exculpatory evidence possessed by the prosecution. To provide additional support for the recognition of pre–guilty plea exculpatory Brady rights, this Note presents a case study of two 2012 Supreme Court decisions establishing the right to effective assistance of counsel during plea bargaining, and argues that the same justifications for recognizing that right during plea bargaining apply to Brady as well.

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