Plea Bargaining and Prosecutorial Motives

15 U.N.H. L. Rev. 1 (2016)

44 Pages Posted: 27 Oct 2016

See all articles by Charlie Gerstein

Charlie Gerstein

Civil Rights Corps; Georgetown University Law Center

Date Written: October 25, 2016


This Article argues that the structure of the plea-bargaining system — which the Supreme Court recently recognized “is the criminal justice system” — hinges on something previously unappreciated by scholars and unaddressed in criminal procedure doctrine: prosecutors’ motives. This Article addresses that problem by studying the prosecutor’s disclosure obligations when defendants plead guilty. Courts and commentators have been divided for years over whether Brady v. Maryland applies when defendants plead guilty. But the current split blinds us to more important, and more vexing, aspects of the problem. The fact is, there already is a disclosure obligation, albeit a hidden one. Armed with an understanding of the dormant disclosure obligation, this Article then addresses tricky issues surrounding this problem and, in doing so, exposes the centrality of prosecutorial motives, which existing scholarship has not addressed. A full understanding of the role of prosecutorial motives in the plea-bargaining system solves several existing doctrinal puzzles — chief among them whether defendants can waive their right to disclosure — yields workable definitions of concepts like “impeachment” and “materiality,” and addresses issues that go to the heart of the plea-bargaining system.

Keywords: Criminal Procedure, Criminal Law, Plea Bargaining, Brady v. Maryland, Prosecutors, Prosecutorial Conduct

Suggested Citation

Gerstein, Charlie, Plea Bargaining and Prosecutorial Motives (October 25, 2016). 15 U.N.H. L. Rev. 1 (2016), Available at SSRN:

Charlie Gerstein (Contact Author)

Civil Rights Corps ( email )

1601 Connecticut Ave NW
Suite 800
Washington, DC 20009
United States

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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